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««%«Wla I I 




HARVARD LAW LIBRARY 



Received JAN 2 3 1930 



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CALIFORNIA 

LAW REVIEW 



VOLUME V 

1916-1917 





SCHOOL OF JURISPRUDENCE 

UNIVERSITY OF CAUFORNIA 

BERKELEY. CALIFORNIA ^ 

\c 

3 

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TABLE OF CONTENTS 



ARTICLES 

British Emergency Legisladon During the Present War, Ludwig 

Ehrlich 433 

California Irrigation Right, The, R. H. Hess 142 

Civil Government, The Establishment of in Porto Rico, William 

H. Hunt 361 

Extralateral Right, The: Shall it be Abolished? William E. Colby 18,303 
Federal Incorporation of Railroads, Max Thelan 273 

Field's Opinions on Constitutional Law, William Carey Jones 108 

Field's Work as Lawyer and Judge in California, Orrin K. 

McMurray 87 

Injunction Without Damage as Illustrated by a Point in the Law 

of Waters, Samuel C. Wiel 199 

Legislative Failure and Reform, David P. Barrows 129 

Military Dictatorship: An Answer to Dean Ballantine's Article on, 

Henry A. Forster 487 

Municipal Affair, Is the Regulation of Railroad Crossings a, 

William Carey Jones 292 

Property, Inalienable Rights of, Charles M. Bufford 37,209 

Public Utilities, Methods of Estimating Depreciation in Valua- 
tion of for Rate Making Purposes, H. M. Wright 1 
Undisclosed Principal in CaRfomia, Austin Tappan Wright 183 
Uniform Sales Act, Some Reasons Why the Code States Should 

Adopt the, Lauriz Void 400,471 

Wills, The Execution of in California, Nat Schmulowitz 377,452 



JAN 2 3 1930 



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AUTHORS iii 



AUTHORS 

Barrows, David P. — Legislative Failure and Reform 129 

Bufford, Charles M.— Inalienable Rights of Property 37,209 

Colby, William E.— The Extralateral Right: Shall it be Abolished? 18,303 
Ehrlich, Ludwig. — British Emergency Legislation During the 

Present War 433 

Forstcr, Henry A. — An Answer to Dean Ballantine's Article on 

Military Dictatorship 487 

Hess, R. H.— The California Irrigation Right 142 

Hani William H.^— The Establishment of Civil Government in 

Porto Rico 361 

Jones, William Carey. — Is the Regulation of Railroad Crossings 

a Municipal Affair 292 

Field's Opinions on Constitutional Law 108 

McMurray, Orrin K. — Field's Work as Lawyer and Judge in Cal- 
ifornia 87 
Schmnlowitz, Nat.— The Execution of Wills in California 377,452 
Thelan, Max. — Federal Incorporation of Railroads 273 
Void, Lauriz — Some Reasons Why the Code States Should Adopt 

the Uniform Sales Act 400,471 

Wiel, Samuel C. — Injunction Without Damage as Illustrated by 

a point in the Law of Waters 199 

Wright, Austin Tappon — Undisclosed Principal in California 183 

Wright, H. M. — Methods of Estimating Depreciation in Valua- 
tion of Public Utilities for Rate Making Purposes ■ 1 



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IV 



INDEX-DIGEST 



INDEX-DIGEST 



Pasres Referrlngr to Articles Designated by Asterisk 



70 

491 
492 



♦183 



Account Stated. 

Nature of the action: neces- 
sity of writing. 68 

Accretion. 

See Property. 

Admiralty. 

Have state courts jurisdic- 
tion to declare a sale of a 
vessel at the instance of a 
minority owner? 
The "saving a common law 
remedy clause." 
Torts: the locality test. 
Adverse Possession. 

See Property. 
Agency. 

Undisclosed Principal in 
California. 
Alluvion. 

See Property. 
Assignment 

See Bills and Notes. 
Bankruptcy. 
Qualified judgment against 
bankrupt: liability of 
surety on bond to release 
attachment on property of 
bankrupt. 335 

Bar Association. 
California, meeting of (Edi- 
torial Note.) 331 
Bills and Notes. 
Assignment on back of note 
as mdorsement. 160 
Boalt, Elizabeth Josselyn. 
An appreciation. (Charles" S. 
Wheeler.) 241 
Bona Fide Purchaser. 

See Deeds. 
Book Account. 
See Evidence; Statute of 
Limitations. 
Boundaries. 

Presumption that grantee 
takes to center. 71 

Charities and Corrections. 
Annual conference of. (Ed- 
itorial Note). 332 
Choses in Action. 
See Property. 



Civil Government 

Establishment of Civil Gov- 
ernment in Porto Rico. ^361 
Claims. 

See Estates of Decedents. 
Conflict of Laws. 

Legitimacy; succession. 247 

Constitutional Law. 

Actions to determine title: 
notice. 336 

Construction of Fish and 
Game Act. 162 

Inalienable Rights of Proo- 
ertv: A Study of Contract 
Obligations and Other Ves- 
ted Rights. ♦37,209 

Personal service of process. 252 

Police Power: Employment 
Agencies. 494 

Validity of Farm Loan Act. 250 
Contracts. 

Joint or joint and several? 163 
Convicts. 

See Persons. 
Corporations. 

Correspondence on "Limita- 
tions on the Thcon' of a 
Corporate Entity in Cali- 
fornia." 65 

Stockholders' liability for 
torts. 248 

Survival of stockholders' lia- 
bility for torts. 416 
Criminal Law. 

Distinction between larceny 
and embezzlement. 7Z 

Miscarriage of justice: con- 
stitutional amendment. 164 

Self help: retaliation. 253 

Dainages. 

Liquidated damages or pen- 
alty. 75 
Deeds. 

Fraudulent grantee from an 
illiterate grantor can pass 
no title to a bona fide pur- 
chaser. 417 

Prior contract necessary to 
constitute escrow. 420 

Sufficiency of delivery when 
delivered to take effect 
upon death. 338 



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INDEX-DIGEST 



Delivery. 

See Deeds. 

Depredation. 

See Public Utilities. 

Easements. 
See Property. 

Secticms. 

Candidate's right to with- 
draw. 77 

£mbezslement. 

See Criminal Law. 

Escrows. 
See Deeds. 

Estates of Decedents. 

Presentation of claim: 
whether amendments al- 
lowable. 166 

Evidence. 

Books of account: laying 
foundation. 255 

Confessions: admissibility 
for court or jury. 496 

SufOciency of non-expert 
opinion. 422 

Exeo^ytion. 

See Practice. 
Extralateral Rights. 

See Mining Law. 

Frand. 

See Deeds; Statute of Lim- 
itations. 

Gifts. 

Release of debts. 343 

Indorsement. 

See Bills and Notes. 
Interstate Commerce. 
Act to regulate commerce: 
long and short haul clause: 
judicial review of orders of 
Interstate Commerce Com- 
mission. 245 
Irrigation. 
The California Irrigation 
Right. ^142 
Jurisdiction. 

See Admiralty. 
Landlord and Tenant. 

Effect of prohibition laws 
upon leases of premises for 
liquor selling. 423 

Liability of tenant to pay 
rent notwithstanding de- 
struction of material part 
of leased premises. 345 

Larceny. 

See Criminal Law. 



Leases. 

See Landlord and Tenant. 

Legal Biography. 
Field's Work as Lawyer and 
Judge in California. ♦ 87 

Justice Field's Opinions on 
Constitutional Law. ♦108 

Legislation. 

British Emergency Legisla- 
tion during the Present 
War. ^433 

Legislative Failure and Re- 
form. ^129 

Legitimacy. 

See Conflict of Laws. 

Licensee. 

See Municipal Corporations. 

Liens. 

See Vendor and Purchaser. 

Lis Pendens. 

Purchaser pendente lite. 498 

Military Law. 
Correspondence: an answer 
to Dean Ballantine's arti- 
cle on Military Dictator- 
ship. 487 
Mining Law. 
Extralateral rights on vein 
possessing characteristics 
of anti-clinal fold or roll. 257. 
The Extralateral Right: 
Shall it be abolished? ♦18.303 
Mortgages. 
Bar of the Statute of Lim- 
itations as ground for 
quieting title. 258 
Tender after default. 78 
Municipal Corporations. 
Is the Regulation of Rail- 
road Crossings a Munici- 
pal Affair? ^292 
Municipal Affairs. 168,500 
Rights of a licensee. 170 
Special assessment of rail- 
road right of way for im- 
provements. 79 
Notice. 

See Constitutional Law. 
Partition. 

See Property. 
Patents. 

See Restraint of trade. 
Penalty. 

See Damages. 
Persons. 
See Conflict of Laws. 
Status of convicts. 81 



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VI 



INDEX-DIGEST 



Pleading. 

Joinder of inconsistent 
counts for single cause of 
action. 172 

Pledge. 

Waiver by execution at in- 
stance of pledgee. 259 

Police Power. 

See Constitutional Law. 
Practice. 
Exemption of suitors and 
witnesses temporarily in 
state from service of pro- 
cess. 347 

Process. 

See Constitutional Law. 
Profits a Prendre. 

See Property. 
Prohibition Laws. 

See Landlord and Tenant. 
Property. 
Adverse possession; pay- 
ment of taxes: douole pay- 
^"»ent. 333 

Alluvion: right of upland 
owner to accretions from 
the ocean. 261 

Easements: profits a prend- 
re: nature of right to 
take water from pipes. 340 
Riehts of land owner in 
trees on hin^hway. 502 

Restraints on alienation: 
choses in action. 263 

Wa^^s of necessitv: partition. 265 
Proximate Cause. 

See Torts. 
PubUc UtiHties. 
Methods of Estimating De- 
preciation in Valuation of 
Public Utilities for Rate 
Making Purposes. ♦! 

Power of commission to 
compel construction of 
branch lines. 174 

Scope of Federal Emplov- 
ers' Liability Act. 348 

Quieting Title. 

See Mortgages. 
Railroad Commission. 
See Public Utilities. 
Railroads. 
See Municipal Corporations. 
Federal Incorporation o f 
Railroads. ♦273 

Rate Making. 

See PuDlic Utilities. 
Reform. 
See Legislation. 



Release of Debts. 

See Gifts. 
Restraint of Trade. 

Common Law: patents. 425 

Sales. 
Some Reasons Why the 
Code States should Adoot 
the Uniform Sales Act.*400,471 
School of Jurisprudence. 
Editorial Notes: (University 
of California). 415 

Seisin. 
Meaning in the Statute of 
Limitations. 429 

Statute of Limitations. 
See Mortgages. 

Open book account. 350 

Underground trespasses: 
constructive fraud. 352 

Statutory Construction. 

Reoeal by implication. 175 

Stockholders' Liability. 

See Corporations. 
Succession. 

See Conflict of Laws. 
Surety. 

See Bankruptcy. 
Tender. 

See Mortgages. 
Torts. 

See Admiralty. 
See Corporations. 
Spite Fence. 177 

Vendor's liability to sub- 
vendee: proximate cause. 178 
Trade Marks and Trade Names. 
Invented words: extent of 
trade mark. 431 

Vendor and Purchaser. 
See Torts. 

Nature and waiver of vend- 
or's lien. 83 
Waiver. 

See Pledge; Vendor and 
Purchaser. 
Waters. 

See Irrigation. 
Injunction without Damage 
as Illustrated by a Point 
in the Law of Waters. ^199 
Ways of Necessity. 

See Property. 
Wills. 
Execution of Wills in Cal- 
ifornia. ♦377,452 
Incorrect and incomplete 
date in olographic wills. 266 
Sign a t u r e of olographic 

wills. 354 

Validity of typewritten olo- 
graphic instrument. 503 
Witnesses. 
See Practice. 



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TABLE OF CASES 



vu 



TABLE OF CASES 



Adams v. Tanner. 494 

Atchison, Topeka & Santa Fe 
Railway Company v. Rail- 
road Commission of the 
State of California. 174 

Atchison, Topeka & Santa Fe 
Railway Company v. Re- 
clamation District No. 
404. 79 

Berkin v. Healey. 258 

Berton v. All Persons 72 

Bordwcll V. Williams 77 

Braun v. Kahn 83 

Bulson V. Moffatt. 258 

Castera v. Superior Court. 81 

Catlin V. Union Oil Company. 178 
Cecinino, In re. 162 

Civic Center Association of 
Los Angeles v. Railroad 
Commission. 500 

Chickasaw Loan and Trust 

Company v. Mills. 417 

Copeland v. Burke. 160 

County of Santa Barbara v. 

More. 502 

Dreyfus, Estate of 503 

Easton v. Littooy. 78 

Egan V. Dodd. 345 

Fee V. McPhee Company. 68 

Fischer v. Carey. 70 

Gault V. Wiens. 259 

Golden Eagle Mining Com- 
pany V. Imperator-Quilp 
Mining Company. 352 

Gonsalves v. Petaluma and 
Santa Rosa Railway Com- 
pany. 175 
Groceteria Stores Company v. 

Tiboett. 431 

Hibbard v. Halliday. 177 

Hill V. Rae. 250 

Holland v. McCarthy. 420 

Jim Butler-Tonopah Mining 
Company v. West End 
Consolidated Mining Com- 
pany. 257 



Kane v. New Jersey. 252 

Lininger v. Botsford. 248, 416 

Loop Lumber Company v. Van 
Loben Sels and American 
Surety Company of New 
York. 168 

MacDermot V. Hayes. 498 

McMahon, Estate of. 354 

Manchester, Estate of. 354 

Merchants Collection Agency 

V. Levi. 350 

Mcsmer v. Uharriet. 265 

Minneapolis and St. Louis 
Railroad Company v. Win- 
ters. 348 
Montgomery and Mullen Lum- 
ber Company v. Ocean 
Park Scenic Railway 
Company. 255 
Motion Picture Patents Co. v. 
Universal Film Manufac- 
turing Company. 425 
Northern California Power 

Company v. Walker. 422 

North Pacific Steamship Com- 
pany V. Industrial Acci- 
dent Commission of Cal- 
ifornia. 491 
Norton v. Ransome-Crummey 

Company. 170 

O'Neil V. Northern Colorado 

Irrigation Company. 336 

Pearson v. Parsons. 166 

People V. Finali. 253 

People V. Howard. 7Z 

People V. Preciado. 164 

People V. Sweetman. 496 

People's Water Company v. 

Boromeo. 429 

Portuguese-American Bank of 

San rrancisco v. Welles. 263 
Postal Telegraph Cable Com- 
pany V. P. Sanford Ross 
Incorporated. 492 

Santa Barbara, County of, v. 
More. 502 



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viii TABLE OF CASES 

Shelton v. Michael. 163 Sullivan v. Shea. 343 

Shepard v. Sullivan. 423 Tanforan v. Tanforan. 172 

Smith V. Smith, 338 Tormey v. Miller. 335 

Southern Pacinc Company v. xt . . « -^t , ^ 

Sprin'^ Valley Water Com- U">*^^ States v. North Ger- 
pany. 340 n^an Lloyd. 492 

Stewart v. Ramsey. 347 United States v. Merchants' 

Strand Improvement Company and Manufacturers' Traffic 

V. City of Long Beach. 261 Association of Sacramen> 

Stratford, Inc. v. Seattle Brew- to et al. 245 

ing and Malting Com- Van Calbergh v. Easton. 333 

pany. 423 Vance, Estate of. 266 

Straus V. Victor Talking Ma- Vath v. Hallctt. 75 

chine Company. 425 Wolf v. Gall. 247 



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BOOK REVIEWS ix 



BOOK REVIEWS 



Atwell, William H.--A Treatise on Federal Criminal Law Pro- 
cedure 506 
Bosh, Coleman Hall— ^Uniform Business Law 181 
Clarke, Fabios M. — ^The California Law of Corporations 85 
Corwin, Bdv^ard S. — French Policy and the American Alliance 

of 1778 181 

Ehrich, Manfred W.— The Law of Promoters 85 

Freond, Ernst — Standards of American Legislation 508 

Fuller, Hobert Bruce — The Act to Regulate Commerce Construed 

by the Supreme Court 180 

Guthrie, William D. — Magna Carta and other Addresses 358 

Hagar, Marshall S. and Alexander, Thomas — Bankruptcy Forms 

Annotated 357 

Harvey, Richard S. and Bradford, Ernest W. — A Manual of the 

Federal Trade Commission 269 

Honnold, Arthur B. — ^A Treatise on the American and English 

Workmen's Compensation Laws 357 

Hoi^dns, James Love — ^Trademarks and Tradenames and Unfair 

Competition 509 

Husband, Richard Wellington — The Prosecution of Jesus: Its 

Date, History and Legality 358 

Lobingier, Charles Sumner — The Evolution of the Civil Law 270 

Ripley, William Z.— Trusts, Pools and Corporations 270 

Stetson, Francis Lynde and others — Some Legal Phases of Cor- 
porate FinancinjK, Re-organization and Regulation 507 
Thurston, Edward S. — Cases in Quasi Contract 357 



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California Law Review 



Volume V NOVEMBER, 1916 Number 1 

Methods of ELstimadng Depreciation in 
Valuation of Public Utilities for Rate 
Making Purposes * 

EVERY property engaged in the public service will be 
composed of property which does not depreciate, land for 
example, in the normal instance, and property which does 
depreciate in value through physical deterioration or functional 
changes. I cannot do better than quote Mr. Adams,^ 

" 'Depreciation' means the shrinkage in value of properties 
because of deterioration from use and because of enforced 
abandonment by reason of functional changes and obsole- 
scence. For purposes of illustration, an iron pipe laid imder- 
ground, through a gradual process of physical deterioration 
fails in the course of a period of years and must be replaced 
by a new one. For purposes of illustrating what is meant 
1^ 'functional depreciation' the growth of a city frequently 
makes necessary changes in the method of distributing the 
water, calling for the abandonment of pumping stations on 
certain sites and the construction of others elsewhere. The 
pumping station of this particular property located in 1904 



♦The opinion of H. M. Wright, Esq., Standing Master in Chancery, in 
his report in the case of Contra Costa Water Company v. City of Oakland, 
pending in the District Court of the United States for the Northern District 
of California, Second District, discusses many questions of interest respect- 
ing the basic principles of rate regulation. Through the courtesy of Mr. 
Wright we are enabled to print a portion of his opinion dealing with the 
matter of depreciation. 

^ Quoting from the transcript in the case (p. 99) . 



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2 CALIFORNIA LAW REVIEW 

and 1905 at the Broadway Reservoir is an illustration in 
point. This pumping station was built subsequent to 1900, 
was in use in 1904 and 1905, and two years thereafter it was 
entirely abandoned and another one built in its place on 
another site. As an example of depreciation through 
obsolescencte one may cite pumping machinery, which, 
though it may after many years of use, be in excellent working 
condition, may have become obsolete and no longer economical 
of use, leading to its enforced abandonment and replacement 
by machinery of greater capacity or of better economy in 
steam consumption. In speaking of depreciation one should 
carefully distinguish between the two general classes ordin- 
arily designated as matured and unmatured depreciation. 
Matured depreciation relates to structures that have wholly 
failed and must be replaced or abandoned, or to properties 
which have entirely failed through functional changes or 
obsolescence. Unmatured depreciation is shrinkage in value 
of properties and structures not new, but still serviceable in 
use and which will in the course of time have to be abandoned 
or renewed. Matured depreciation represents total shrinkage 
in value because of the structures' having served out the entire 
period of their usefulness. Unmatured depreciation repre- 
sents shrinkage in the value of structures because they have 
partially served out their total period of usefulness." 

It obviously follows that if a water works is to have a fair 
return for its service to the community, the rates charged must 
afford a revenue from operation sufficient to make good this inevi- 
table depreciation in value of certain of its elements, as well as 
other costs of operation, plus the profit which induces the opera- 
tion. Depreciation is thus, for any future period, a problem in 
cost accounting. That this apparent fact, now generally admitted, 
was not always understood is shown by the decisions of the 
Supreme Court of California in Redlands Water Company v. 
Redlands,^ and San Diego Water Company v. San Diego,* where 
an annual return in the rates for depreciation was denied. In the 
latter case Mr. Justice Garoutte said:* 

"Such a thing is all wrong, for it results in the consumers 
of water buying the plant and paying for it in annual in- 
stallments." 



2 (1898), 121 Gal. 312, 53 Pac. 791. 
8 (1897), 118 Cal. 556, 50 Pac. 633. 
*Id. p. 583. 



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DEPRECIATION 3 

On this basis, the owner of a plant costing $100,000 with an 
assumed life of twenty years would receive income on his invest- 
ment for the life of the plant, and would then be out his investment 
save for its scrap value. This would be like satisfying a loan by 
paying interest on it. 

It is only within the last few years that methods of accounting 
for depreciation in relation to the problem of rate fixing have been 
the subject of thorough study by those most competent to speak. 
The impetus to that study seems to have been the decision in 
Knoxville v. Knoxville Water Company.** I am assured by counsel 
that in this case certain opposing theories have for the first time 
been presented for judicial determination. Certainly the exposi- 
tion of these questions in the record, both by the witnesses, 
engineers of high standing and fitness, and by counsel has been 
most exhaustive and able. 

The law on this question may be considered as fairly well 
settled by the decision in Knoxville v. Knoxville Water Company*. 
It would be interesting to consider that case at some length with 
reference to the specific facts there disclosed, and to certain pos- 
sible limitations on the generally received doctrine of the case. It 
is not here necessary. That case may be considered to stand for 
the following propositions, namely: That the depreciated value 
of public service property is the proper rating base for determin- 
ing fair return; that the rate-payers must pay for the depreciation 
of public service property; and that such a company is entitled to 
earn its depreciation annually as the depreciation accrues. 

In the Minnesota Rate Cases,^ the court disapproved the 
master's action in finding that the depreciation which had in fact 
happened was more than offset by appreciation, and thus adopting 
the cost of reproduction new as his rating base. The property 
in question was a railroad, and here, as in the water works of the 
Knoxville case, the court held that the extent of existing deprecia- 
tion should be shown and deducted, saying: 

"It must be remembered that we are concerned with a 
charge of confiscation of property by the denial of a fair 
return for its use; and to determine the truth of the charge 



5 (1909), 212 U. S. 1, 53 L. Ed. 371, 29 Sup. Ct. Rep. 148. 

•Supra, n. 5. 

' (1912), 230 U. S. 352, 456, 57 L. Ed. 1511, 33 Sup. Ct Rep. 729. 



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4 CALIFORNIA LAW REVIEW 

there is sought to be ascertained the present value of the 
property." 

In other words, the Supreme Court identifies value for rate 
fixing purposes with value in exchange, the value that would be 
be paid for the property upon sale or condemnation. In such 
cases loss of condition or diminished life would inevitably be 
reflected in a diminished value. 

In approaching the problem before us it is necessary to bear 
in mind that the question of depreciation presents itself in two 
aspects. The one, its financial aspect, concerns the method of 
amortizing the value of a structure, of fulfilling the ratepayers' 
duty of paying for wasting value as it progresses. It is discussed 
primarily in terms of money, and rates of interest for the use of 
money. It is a problem of bookkeeping, of cost accounting, apply- 
ing mathematical principles and methods. It is most appropriate 
in considering the problem of depreciation for the future life of a 
new plant or, perhaps, the remaining life of particular structures 
of an old plant. The other aspect has to do with the facts of 
depreciation, for example, the percentage of present condition and 
therefore the present remaining value, the rate at which as a fact, 
depreciation has gone on, the rate at which it may be expected to 
go on hereafter, and like concepts. We are here considering a 
plant in the middle of the lives of its units. Now, if under methods 
of accounting agreed upon by the company and the city, books 
had been kept to show a depreciation account, the only problem 
to arise would be as to whether the basis of cost accounting should 
be changed in view of money costs, interest rates and the like, in 
the light of actual replacement requirements. Here no depreciation 
account has been kept and no reserve for accruing but unmatured 
depreciation laid by. In ratefixing proceedings under the Knox- 
ville decision as generally received, and certainly in the event of 
sale, the company must stand this loss. 

"It is obvious, however, from what has been stated that we 
must first understand depreciation from the theoretical standpoint, — 
the different methods of amortization of capital. I shall consider 
four such methods which have been discussed in the evidence in 
this case, viz: — the replacement method, two curve line methods, 
founded upon the principle of the sinking-fund, which graphically 
depicted forms a convex curve, and the straight line method so- 
called from its graphic form. 

In the discussion and in the illustrative tables which follow it 



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DEPRECIATION 5 

will be assumed that the plant is a normal plant as regards its 
cost and its relation to the community demand ; that it consists of a 
single structure whose original cost was $100,000, and whose life 
is ten years; that original cost represents value new, both at the 
time of installation and at the time of replacement. For illustra- 
tion, we will assume that a proper investment return throughout 
the life of the plant sufficient to induce the building and operation 
of the plant is six per cent. 

In this simple situation it must be admitted by everyone that 
the owner of the plant must receive as his reward six per cent 
per annum throughout the period, a total of $60,000, and must 
also at the end of the period have received enough from the rates 
charged to keep his investment intact, that is, to make good the 
waste of depreciation. In other words, his total return on account 
of interest on investment and depreciation combined must reach 
the sum of $160,000. This may be effected in several ways. 

Another and underlying principle which must not be lost sight 
of is that in any business situation money is always to be deemed 
as earning interest at a compound rate for the benefit of its owner, 
the one in whose hands it is at any time. 

As stated before, for the purpose of this discussion I assume 
that original cost of any unit of plant is the measure of its capital 
value, and that replacement will be made at the same cost. 

Replacement Method. 

By this method, capital lost by depreciation is returned when 
depreciation matures and only then. When the imit reaches the 
end of its life and is renewed or abandoned, an allowance is made 
in costs for that year of the full value of the unit. There is no 
annual return to offset depreciation. It is unnecessary to con- 
sider the estimated life of the plant. The percentage rate of 
return to the investor must obviously be based on undepreciated 
value; otherwise capital is currently used up without income 
return, and confiscation results. This will be clear from the follow- 
ing table.® 



»G>Iumn 4, in table 1, might better be entitled, Rating Base. It is the 
amount of capital unamortized; but as depreciation progresses it of course 
does not represent present value of capital, the value in exchange. 



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TABLE 1. 

Replacement Method. 

Original cost equals value new, equals replacement value, $100,000; life of 

ten years; rate of return to the investor six per cent throughout. 





d 


2 


i2« 


i2 


12 


i 


i 


o 


g£2 
^2 .a 


h 


52 




1 


00 rt 


11° § 

ml 


"ill 

I§1 




1 


$100,000 





$100,000 


$6,000 


$6,000 


2 








100,000 


6,000 


6,000 


3 








100,000 


6,000 


6,000 


4 








100,000 


6,000 


6,000 


5 








100,000 


6,000 


6,000 


6 








100,000 


6,000 


6,000 


7 








100,000 


6,000 


6,000 


8 








100,000 


6,000 


6,000 


9 








100,000 


6,000 


6,000 


10 





$100,000 


100,000 


6,000 


106,000 


11 








100,000 


6,000 


6,000 


12 








100,000 


6,000 


6,000 



If capital remaining were valued each year as depreciated, 
say, for example, at an equal amount of $io,ooo a year, the value 
of plant during the tenth year would be $io,ooo, and return that 
year $6oo; dividends would be paid at one-tenth the proper rate, 
and it is seen that a progressive confiscation of capital has resulted. 

This method does not conform to the Knoxville decision supra, 
in that it necessarily bases return on undepreciated value, or 
original investment, and in that it does not return depreciation in 
annual instalbnents. Its advantage is that it is a simple method 
easily determined. If as regards any particular public service 
property it should appear as a fact that it was composed of a great 
number of depreciating items, having comparatively short lives, 
and of comparatively small cost, installed at different times, it 
might well come about as a matter of history and experience that 
replacement requirements each year would be approximately the 
same, or would reach such a total figure as combined with the 
investment return would make the combined return for replacement 
and investment approximately equal each year, — the ideal con- 
dition. It may be conceived, for example, that this might apply 
in the case of a railroad. If such were the case it would be a just 
and proper method, both to the company and to the rate-payer. 
In any case where such conditions do not obtain, especially as 
seen in the table, the method has practical disadvantages that are 
obvious. Compliance with the method requires an enormous 



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DEPRECIATION 7 

advance in rates during the tenth year, which would work great 
hardship on the consumers of that year, to the advantage of the 
consumers of other years. From the standpoint of the owner of 
the plant also it involves possible, indeed, probable, injustice in that 
the extraordinary rate, if imposed by the rate-making body, would 
probably be impossible of collection; and, furthermore, since no 
legislative body may bind its successors, might not in fact be 
enacted. 

Sinking Fund Method. 

By this method the rate fixed assumes that there will be 
returned to the water company annually in addition to other costs 
and profit, such a sum of money as placed at interest will, by the 
operation of compound interest amount to the wasted capital at 
the end of its life. This sum or annuity would be obtained from 
sinking fund tables. The probable life must first be estimated, 
taking into account both physical and functional depreciation, and 
the sinking fund interest rate determined. Here, as in the replace- 
ment method, the return to the investor must be based on unde- 
preciated value. Every sinking fund payment and its interest is of 
such an amount that there is no surplus to provide an intermediate 
return of capital. As in the replacement method, the fund is not 
ripe for its intended purpose until replacement is necessary; it 
earns interest only for the benefit of the sinking fund, and not for 
the benefit of the owner of the plant. The rate-payer pays each 
year only the sinking fund increment, and not any sinking fund 
interest. If a strict sinking fund were established in the hands 
of a trustee, payable only when depreciation matured, it would 
be evident that, as in the replacement method, return must be 
made on the full investment throughout to avoid a confiscation 
of capital. The method does not, however, imply that such a trus- 
teeship should be established, or even that the fund be kept locked 
up, say in outside securities. It .is conceived that it may be paid 
to the owner of the property and may be used by him for capital 
purposes, for example, new additions to the plant. The result is 
not changed, however, because in such instance the rate-payer 
has not paid the sinking fund interest, but only the sinking fund 
annuity, and in the instance given the diversion from sinking fund 
to capital additions must be made good by new capital from the 
owner's pocket when the time comes for replacement of the original 
unit in question. Indeed, such use of the sinking fund is usual in 



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CALIFORNIA LAW REVIEW 



practice. It is deemed desirable because it avoids dead capital, and 
because also it allows the employment of a higher rate of interest 
for the sinking fund, viz., the rate on the business investment 
instead of the lower rate on prime securities. Thereby this practice 
diminishes the rate-payer's burden of annual contribution. On 
the same assumptions as above, and also assuming that the rate of 
interest which the sinking fund earns will be six per cent, a table 
illustrating the sinking fund method may be constructed as fol- 
lows :• 

TABLE 2. 
Sinking Fund Method. 

Capital value $100,000; life ten years; rate of return on investment, and 
on sinking fund six per cent. 





m 

^^i^ 


Sinking 


Fund 


2 

f3 




1 

5 




<!> 


m 


1 


■d 


(4 


i 


6oSe 


Be . 


§1 


o 

Is 

Q3 


III"? 

oBo> 


II 

si 




5b 





$100,000 







$innnm 






1 


s^ 







100,000 


$6,000 


$13,587 


2 





455 





100,000 


6,000 


13.587 


3 





7,587 


938 





100.000 


6,000 


13.587 


4 





7,587 


1.449 





100,000 


6,000 


13.587 


5 





7,587 


1,991 





100.000 


6.000 


13.587 


6 





7,587 


2,566 





100,000 


6.000 


13,587 


7 





7,587 


3,175 





100,000 


6,000 


13.587 


8 





7,587 


3,821 





100,000 


6.000 


13,587 


9 





7,587 


4,505 





100,000 


6.000 


13.587 


10 





7,587 
$75,870 


5,230 







6.000 
60.000 


13,587 












$24,130 $100,000 $100,000 $ 


$135,870 



The rate-payer thus provides each year the sum of $13,587, 
composed of $6,000, return on capital available for dividends, and 
$7,587, for sinking fund to amortize depreciation. 

The sinking fund method conforms to the Knoxville decision, 
supra, in that it takes care of depreciation by annual installments, 
but it does not conform to that decision in that the rate of return 
is estimated on undepreciated value. Nevertheless it is obvious 
that it is a just method to the investor and to the rate-payer in that 
it conforms to the primary principles referred to at the outset of 
this discussion; it gives the investor his interest on his investment 



'Here also, as in table 1, supra, column 6, would better be entitled 
Rating Base. 



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DEPRECIATION 9 

throughout, provides in the rates for the accruing depreciation of 
the structure, and complies with the principle that the money con- 
tributed in advance of the necessity of replacement is made to earn 
interest in the hands of the company, a credit to the rate-payer. 

Residual or depreciated value would obviously in any year equal 
the value, new, less the aggregate sinking fund payments and their 
accumulations of interest. Whether the residual value thus fotmd 
would be the sale value or the present value in fact would of 
course depend upon whether the sinking fund interest rate cor- 
responded with the rate of depreciation in fact. 

Modified Sinking Fund Method: Adams Method: Equal 
Annual Payment Method. 

It is obvious that if you mark off each year from the value of 
a structure an amount equal to its depreciation in value, and 
rate the return to the investor upon the depreciated value as a 
base, you must concurrently return that amount to him in full, 
or confiscation results. This is the doctrine of the Knoxville case. 
Now it is a fact that with all long-lived structures in a waterworks, 
actual depreciation follows approximately a sinking curve; in other 
words, it is not uniform each year, but is progressive, small in the 
early years and progressing largely as final dissolution approaches. 
On this theory the experience of engineers will enable them to 
adopt a rate of progression and a life expectancy that will enable 
them to approximate the facts of loss of value as it progresses, 
and to amortize the value in the rates, on the principle of the 
sinking fund. The annual depreciation each year would be equal 
to the sinking fund annuity plus interest on the sinking fund in 
hand. This sum would each year be deducted from the capital 
value to get the new rating base. In Table 3 below, at the end of 
the first year the owner will receive from the rate-payer $6,000 
interest on capital value of $100,000 and $7,587 to cover deprecia- 
tion, being the amoimt which will equal $100,000 in ten years if 
contributed each year with compound interest at six per cent. 
The capital thus repaid being deducted, the return to the investor 
is $5,545, being six per cent on $92,413 capital, and in addition, to 
cover depreciation, the annuity of $7,587 plus six per cent interest 
for one year on the $7,587 repaid the first year. In other words, 
column 3 in Table 3 is for each year the sum of columns 
3 and 4 in Table 2, ante. Column 4 of Table 3 is fotmd by adding 
all prior payments of column 3 of the same table, and column 5 



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is determined each year by a subtraction of the amounts in column 
4. It is plain that here we have a modification of the sinking fimd 
method producing equivalent results, which meets the rule in the 
Knoxville case and provides a plan of amortization which approxi- 
mately conforms to the facts of depreciation. Table 3, upon the 
same assumption as Table 2, is as follows. 



TABLE 3. 

Modified Sinking Fund Method. 

Investment $100,000; life ten years; investment rate of return six per cent; 

sinking fund rate of return six per cent. 



0*0 



— I — 

.0 
Sg 



<U V ^ 

ins 



0.3 

00 *^ 
CIS 



S.g5g 



o.So> 



CO®*- 



S.. 



1 


$100,000 


2 





3 





4 





5 





6 





7 





8 





9 





10 






$7,587 
"8;042 
"'8;525 
"'9;636 
'9,578 
10,153 
ia762 
l"l'',408 
12^092 
12,81*8 



$7,587 
15,629 
24,"l53 
33;i'89 
42^767 
52,920 
63;682 
"74,090 
'87;i82 

loo^ixx) 



$100,000 
92;4i3 
"84,371 
"75',84'7 
66,811 
"57,233 
47','680 
36;3r8 
'24^910 
12,818 



$6,000 
"'5;545 
"5,062 
"4;'55"l 
"'4,009 
"'3^434 
"'2;825 
"'2,"i79 
""l"49'5 
769 



$13,587 
"i3,'58'7 
"i3;58"7 
"137587 
"l3;587 
T3,587 
"l3i58"7 
"137587 
137587 
T3r587 



$100,001 



$35,869 $135,870 



The method illustrated above is one favored (December, 1913) 
by a committee of the American Society of Civil Engineers of 
which Mr. F. P. Steams, a witness in this case, was chairman. 
The committee calls it the equal annual payment method, referring 
to the fact that here as in the pure sinking fund method shown in 
Table 2, the combined return made by the rate-payer to the water 
company to cover investor's return plus depreciation allowance, is 
constant each year for the same capital value. This is a good 
thing for both parties, avoiding fluctuations in the rates. It is also 



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DEPRECIATION ii 

equitable, because as Mr. Adams says: "A structure, no matter 
what its age, so long as it is serviceable, renders just as valuable 
service to the consumer of water as though the structure were 
new." The name is not well-chosen, for if the rates of interest 
adopted for sinking fund and for investment are not the same, the 
combined return will not be the same for the different years. I 
have constructed a table to illustrate this but it seems unnecessary 
to burden the report with it. 

In 1909 Mr. Adams, in collaboration with Mr. Steams and 
Mr. Hawgood, constructed and applied to this case a formula 
which embodies what is called in this record the "Adams Third 
Method." Where the two interest rates are the same it is identical 
throughout with the method of the engineers' conmiittee shown in 
Table 3 above. The Adams method, however, is a true equal 
annual payment method, for the combined return for interest and 
depreciation is the same, regardless of differing interest rates. His 
formula is framed on that basis. I need not follow the theory into 
its refinements.^® 

Straight Line Method. 

The straight-line method, (so-called from the plotted result) as 
distinguished from the last three methods, which are "curve-line," 
takes care of depreciation on the assumption that deterioration of 
all kinds wastes the capital in use an equal amount each year of 
the estimated life. It is, therefore, like the Adams and the Equal 
Annual Payment methods, a method which returns capital in in- 
stallments, here equal each year. Obviously, to avoid injustice to 
the rate-payer, depreciated value is necessarily the basis of return, 
since otherwise the utility owner would be getting interest on his 
full principal, and an installment upon which he could earn further 
interest. It accords with the Knoxville decision on the assumption 
that amortization of an equal proportion each year equals depre- 
ciation each year. No interest rate is here needed in the calculation 



R + A 

i<>The Adams formula is P= where 

R A\ 
P = percentage of new value of a structure having a useful life of N years, at 

any age N — Z years. 
R =Rate of interest on capital. 
A = Sinking fund annuity for the first year. 

A*=Sinldng fund contribution at end of any given year (N — Z), which 
will amortize the residual value if contributed with compound interest 
for each year of the residual life. The values A, A^ are found in 
sinking fund tables. 



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to determine annual depreciation installment or depreciated value 
of capital. In the following table I will, as before, use six per 
cent for illustration, on the investment value to show the com- 
bined return on account of investment and on accoimt of accruing 
depreciation. 

TABLE 4. 
Straight Line Method. 

Investment $100,000; life ten years; rate of interest on 
investment six per cent 



i 


2 
Capital Paid=: 
Cost = Value 
new = Replace- 
ment Value. 


8 
Annual Depre- 
ciation Return- 
ed. 


4 

Total Capital 
Returned = Ac- 
crued Deprecia- 
tion. 


5 
RemaininfiT Cap- 
ital = Residual 
or Present 
Value. 


1 

M 

1 


1 

Is 

t5 


1 


$100,000 











$io666 
I0666 
10,000 
lo'ooo 


$i6i666 
''^;666 


$100,000 

961666 

80,000 
7O000 
60,000 

56r666 

40,000 

36r666 
267666 


$6,000 
5,400 
4,800 

""4;266 
3,600 
3,000 

■"2,466 

1,800 

1,200 

600 




2 
3 


$16,000 
15,400 


4 

«> 


30,000 

"46,666 
~56",666 
66r666 

70,000 
80,000 


14,800 
14,200 


6 
7 
8 
9 


10,000 
T6;666 
T6r666 
10,000 
10,000 
10,000 
$100,000 


13,600 
13,000 
12,400 
11,800 




90,000 


11,200 


10 


10,000 






100,000 


10,600 




$33,000 


$133,000 



The straight-line method is the one used by defendant's wit- 
nesses to value. The advantage of this method is its simplicity and 
comparative ease of application. It conforms with the Knoxville 
decision in that it returns depreciation in installments while it is 
accruing, and it bases investment return on the depreciated value 
thus found. In speaking of simplicity of application it must be 
remembered that in each of these methods, except the pure re- 
placement method, in other words, in each method where estimated 
life of the unit of plant is taken into consideration, the computation 
as to annual depreciation and as to depreciated value must be 
made for each unit of the plant, and not for the plant as a whole. 
In any event, therefore, the computations for this purpose are 



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DEPRECIATION 13 

complex and of some difficulty; it is obvious, however, that the 
straight-line method is the easiest in application. 

Speaking now of disadvantages of the straight-line method, and 
viewing the matter now purely in the light of a comparison of 
methods to be pursued from the beginning to end of a plant, the 
chief disadvantage of the straight-line method is that the money 
return to be made each year on accoimt both of investment return 
and depreciation allowance is largest in the earliest years of the 
plant when it is least likely to make adequate returns, and smallest 
in the later years when it has become fully established. Of course, 
this theoretical objection applies only when the plant as a whole 
is new ; when the plant is established with structures coming in and 
going out all the time it loses its force to a considerable extent. 

Another disadvantage of this method, if we assume that the law, 
whether expressed in the Knoxville decision or otherwise, requires 
that the annual depreciation installment should approximate the 
course of depreciation in fact, is that as a general rule depreciation 
in any structure does not occur in an equal amount each year, but 
is progressive, that is, tends to follow a sinking fimd curve. 
Defendant's witness, Dockweiler, admits this. An elaborate and 
rather labored attempt was made by defendant's witnesses to 
prove that the depreciation of the plant as a whole, taking into 
account some items that depreciate more rapidly at the beginning, 
would tend to approximate the straight-line method. Defendant's 
witness, Mr. MulhoUand, who, however, does not profess to have 
given much thought to the subject of depreciation as an accoimting 
problem, favors the straight-line method, because he believes that 
experience would show that in an established plant the deprecia- 
tion of all items would be about equal each year. The obvious 
defect in all of this evidence is that in our investigations of methods 
of depreciation we are discussing single units of structure, and 
not the plant as a whole. I have said before that if the plant 
were sufficiently complex, the differing values and differing lives 
might, as a matter of experience, be shown to result in equal in- 
stallments for depreciation purposes, even under the pure replace- 
ment method. If we could plot the results of any of the curve-line 
methods it might appear that there was a straight-line depreciation 
of the plant as a whole. But in order to determine the matter 
with entire accuracy, and in that view to determine which method 
most nearly approximates a just and correct result, it is obviously 
necessary to test the method by its application to a single structure. 



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Therefore, if the assumption is true that depreciation payments 
should approximate the actual course of depreciation in fact, the 
straight-line method is imperfect and unjust to the rate-payer in 
that it requires him to pay for depreciation in advance of its 
accrual. 

Another objection, and a valid one, is that it does not con- 
form to the rule that payments each year throughout the life 
of the plant on account of the two elements of investment return 
and return for depreciation should be equal. This is very well 
shown by Mr. Dockweiler in his argument for the straight-line 
method. He was there arguing that the method should be pre- 
ferred because it meets the rule of equal annual payments in that 
the payments on account of depreciation each year are equal under 
this rule. Curiously enough he entirely overlooked the fact that it 
is the total return for service which should be equal each year, and 
that this return covers the entire amount paid by the rate-payer, 
viz, the combined return of interest on investment and depreciation 
installment. 

Another disadvantage of the method is shown in the fact that 
it takes no account of the principle that money should be con- 
sidered as earning interest wherever it is. In this connection it 
is here appropriate to examine the defendant's contention as to 
the comparative cheapness of this method to the rate-payer. 

Comparative Cheapness to Rate-payer of Foregoing Methods. 

In this connection I shall, for convenience, compare only the 
four methods referred to *in this record, namely : Replacement, 
Sinking Fund, Adams, and Straight-Line methods. The following 
table shows in comparative form the total amounts paid by the 
rate-payer to the utility owner on account of depreciation and 
investment return. 

TABLE 5. 
Comparison of Total Payments. 
Six per cent for both rates of interest. 



12 3 

Depreciation. Investment Combined 

Return Return 



i 

Interest 

earned by 

Depreciation 

Payments 



Replacement 

Method 
Sinking Fund 

Method 
Adams Method 
Straight Line 

Method 


$100,000 


$60,000 


$160,000 





75,870 


60,000 


135.870 


$24,130 


100,000 
100,000 


35,870 
33,000 


135,870 
133,000 


24,130 
27,000 



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DEPRECIATION 15 

These tables have been assembled from the tables preceding. 
The first three columns of figures, or specifically the third column 
shows the total amotmt of money paid by rate-payers under the 
different methods. 

Mr. Dockweiler for defendant argues at great length and with 
elaborate tables, that the straight-line method is the cheapest for 
the rate-payer, and that it is chiefly for this reason that he pre- 
fers it. Now, it must be evident upon reflection that such a thing 
is impossible. All of these methods are correct methods, (I have 
omitted similar methods upon unsound hypotheses that are incor- 
rect), whose purpose is to return to the investor the waste repre- 
sented in depreciation of physical structures, and at the same time 
to assure him a fair return in the way of profit for his service to 
the conmiunity in the form of interest on investment. All of them, 
if pursued from beginning to end, according to their h)rpotheses will 
work out these results correctly in the long run. It is, therefore, 
impossible that one should be cheaper than another. 

This is clearly shown upon an inspection of the above tables. 
No method shows the return of depreciation and of profit more 
clearly than the pure replacement method, and yet upon Mr. Dock- 
weiler's theory this would be the most expensive method, since 
the total rate-payer's payment is $160,000. Obviously, on the same 
theory, the straight-line method would be the cheapest because its 
total return on the six per cent basis for interest would be 
$133,000. The fact is that the replacement method and the 
straight-line method are of equal cheapness if we consider the fact 
that money is always earning interest. Under the replacement 
method $100,000 is not paid over by the rate-payers until the 
structure is fully depreciated and goes out of use. But during the 
ten years life which we have assumed, that $100,000 in the hands 
of the rate-payer has not been locked up in a safe deposit box, 
but has been earning interest for the rate-payer. The only way to 
calculate this interest would be by the pure sinking fund method. 
On general principles of elementary arithmetic this is seen by the 
table to amount to $24,130, which the rate-payer has earned while 
he was waiting to hand over the $100,000 to the owner of the 
utility. The net amount which he has paid, therefore, considering 
this fact is only $135,870, the amount shown by the various curve- 
line methods. On the other hand, under the straight-line method 
the rate-payer has not kept his money earning interest in his own 
hands, but has handed it over in installments of $10,000 a year 



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i6 CALIFORNIA LAW REVIEW 

which would be worth in interest to the company, calculating at six 
per cent, the sum of $27,000, as a simple calculation would show. 
Thus, considering the worth of money, the rate-payer pays the 
same sum, $160,000, to the company under either method. The 
fact that money paid is worth interest is clearly recognized and 
taken account of in the sinking fund method and in the Adams 
method. 

Summary of Methods and Conclusions as to Depreciation. 

After this elementary discussion we are in a position to draw 
conclusions upon the question of depreciation, first viewed as a 
problem in cost accounting, and, secondly, from the standpoint of 
actual condition, — the facts of depreciation, and the annual amount 
to be allowed to amortize the remaining value during the remaining 
lives of the units of the plant. 

All of the methods described will work out justly if consistently 
applied from the beginning to the end of each unit of plant. The 
replacement method is conveniently applied in the case of a very 
large property, having varying units of short lives which come in 
and go out of use with substantial uniformity. In such a case, how- 
ever, the fundamental mathematics of the method requires that the 
rate of return be calculated upon undepreciated value, and so, of 
course, the method cannot consistently stand with the letter of the 
Knoxville decision. For the latter reason also the pure sinking fund 
method may be dismissed from consideration. 

Both the straight-line method and the modified sinking fund 
or Adams method, are consistent with the doctrine of the Knoxville 
case. In the case of a plant having units of short lives, as, for 
example, ten years, and especially where the values of the units 
are small, the straight-line method would naturally be preferred on 
account of its simplicity. It has already been pointed out, how- 
ever, that there are serious objections to this method, viewed purely 
as an accounting method, because of heavier payments on account 
of depreciation in the early life of the unit, and secondly, because 
the method does not realize the ideal condition of equal annual 
payments each year on account of the combined total of deprecia- 
tion payments and payments for interest on the investment. The 
modified sinking fund or Adams method meets these objections 
perfectly. The objection to these methods in turn is the difficulties 
and complexities of the computation. An objection to be made 
against both methods is that they involve the necessity of esti- 



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DEPRECIATION 17 

mating the lives of the units, a difficult thing to do, since engineer- 
ing is not an exact science, and since experience cannot be applied 
uniformly where physical conditions surrounding each plant may 
be expected to differ. 

It should be here stated that this comparison of methods has 
followed somewhat academic lines. It is quite possible in any par- 
ticular problem in estimating the amortization of depreciation that 
a method may be selected, preferably on a curve-line basis, and 
adjusted from time to time according to experience. In the course 
of time that experience, though founded upon a curve-line basis 
of progression, may, for convenience, dictate for short periods an 
annual depreciation reserve built up on the straight-line basis 
subject to future correction. 

H. M, Wright 

Standing Master in Chancery, U. S. District Court 
for the Northern District of California. 



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The Extralateral Right: Shall It 
Be Abolished? 

III. The Federal Mining Act of 1872. 

It was generally recognized that the law of 1866 was a long 
step in the right direction, inasmuch as it gave explicit federal 
sanction to mining on the public domain and thus set at rest any 
question as to what attitude the government would take toward the 
miners who were for eighteen years prior to its passage technical 
trespassers.^ Everyone recognized that the Act of 1866 had been 
hastily prepared and passed to meet an emergency and thus forestall 
legislation hostile to the mining interests. Senator Stewart himself 
in urging the bill of 1871 in the Senate referred to the bill "as 
an amendment to the law of 1866 that was passed through in rather 
a crude state."* In the next Congress Senator Stewart was again 
the leader in framing the bill which during that session became the 
Act of 1872 and was its most active champion. A draft of a pro- 
posed act had previously been sent through the mining districts for 
criticism and the discussion had covered a period of two or three 
years. 

The bill which had passed the Senate in 1871 was reintroduced 
in the next session of Congress and passed the House.* This bill 

lA similar situation has but recently arisen on the public domain in 
connection with the inmiensely valuable oil lands of California and Wyom- 
ing. Oil miners had gone on the public lands, though in this case at the 
invitation of the government, and expended fortunes in some instances in 
developing oil. The placer mining law was plainly unsuited to these novel 
conditions, where discovery of the oil Ijdng at great depth required large 
capital and considerable time. Many claimants failed to comply with all 
of the technical requirements of this law and while certain remedial legisla- 
tion was passed by Congress to improve the situation, the federal govern- 
ment has more recently treated these operators as trespassers and now 
seeks not only to eject them from these lands but also to recover the value 
of the oil theretofore extracted. This reversal of the liberal policy adopted 
by Congress in 1866 is due to the growth of the idea that the best interests 
of the public demands the reservation and control by the federal govern- 
ment of all natural resources which are vital to the future welfare of the 
nation and that this new policy is especially applicable to lands containing 
petroleum which is in demand for use in the navy. 3 California Law 
Review, 272-291. 

2 Congressional Globe, Feb. 6, 1871, p. 978. 

* Dr. Raymond in commenting on this bill said : "In its main features 
it is an eminently wise and salutary measure. Senator Stewart has dis- 
played both courage and judgment in its preparation, and has given new 
proof of intelligent, earnest devotion to the true interests of the mining 
industry. Raymond, Mineral Resources (1872), p. 502. 



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EXTRALATERAL RIGHTS 19 

left the length of lode claims the same as under the Act of 1866 but 
provided for a maximum width of three himdred feet on each 
side of the middle of the vein at the surface and prescribed that 
the end lines should be parallel and at right angles with the general 
course of the vein/ 

After the bill had passed the House, the Senate Committee on 
Mines and Mining evidently did its real work. The various 
features of the law that required changing were extensively 
debated. There appeared before this Committee representatives of 
the mining interests of the West. 

Senator Alcorn of Mississippi had charge of the bill as chairman 
of the Committee and while disclaiming any special knowledge 
of the subject, yet, as a matter of accomodation, stood sponsor for 
the measure when it came before the Senate, saying: 

"This bill has been considered by the Committee with great 
care, each section of the bill has been discussed, and the 
result is that the report embodies the intelligence brought to 
the Committee by various persons who appeared before it in 

the interests of the mining districts As to its 

practical working, I will only say that it is in conformity 
with what seems to be the settled policy of the Government 
with regard to mining."* 

Senator Stewart, who was the real advocate of the bill 
in its revised form — the form which was substituted for the 
House bill, already passed by that body, — outlined the gen- 
eral situation leading up to its framing as finally presented 
for passage. His years of experience with actual conditions 



♦Congressional Globe (Jan. 23, 1872), p. 533. Mr. Sargent representing 
California, who had charge of this bill in the House, urged its passage 
saying: " . . . . The bill does not make any important changes in the min- 
ing laws as they have heretofore existed. It does not change in the 
slightest degree the policy of the Government in the disposition of the 

mining lands Now, although the legislation of 1866 was extremely 

imperfect in the machinery, which since that time we have been trying to 
improve so that it might be easier for miners to avail themselves of the 
benefits intended to be conferred upon them by law, yet it showed to 
observers that the system was correct This bill simply oils the 

machinery a little; it does not change the principles of the law; it does not 
change the tenures; .... Congressional Globe, Feb. 6, 1871, p. '978. 

In urging the passage of the Placer Act of 1870, Sargent had used the 
following language in describing the origin of these mining laws: "The 
ori^nal title or possession depended upon mining laws — a code originally 
wntten, modified afterward by custom — a code as well settled and under- 
stood by our courts and by the miners themselves as is the Conunon Law of 
England by the Courts of the United States — a code eminent for its wisdom, 
perfected by long experience, and admirably adapted to the conditions ana 
necessities of the people among whom it originated." 

» Congressional Globe, April 16, 1872, p. 2460. 



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20 CALIFORNIA LAW REVIEW 

in the mining districts of the West and his active interest in 
mining legislation, ever since he took the leading part in secur- 
ing the adoption of the Act of 1866, add immeasurably to the 
weight of his views, which were as follows : 

" .... In the first instance the miners legislated 
for themselves. Congress finally in 1866 passed a bill em- 
bodying many of the principles of this bill, and from that time 
to this the Land Office has been operating under it, and for the 
last three years we have been attempting to codify it and bring 
it into a shape that will be satisfactory and more certain and 
correct abuses. Last year a bill was introduced here and 
passed which was quite similar to this. A bill has passed the 
House which is similar to the one that passed here last winter. 
Since its passage by the House the Delegates from the Terri- 
tories and those familiar with mining rules have had a great 
many meetings over this bill in connection with the Committee 
on Mines and Mining, and the result is a codification, which is 
the best they can do. I believe it will meet with imiversal 
favor. It is a very important bill to be passed to prevent liti- 
gation and give certainty to mining enterprises. It provides 
for a very large district of coimtry where there are important 
interests dependent upon it which are now in a very uncertain 
condition involving litigation. This is the best we can get 
with all the experience we can bring to bear. It is no one 
man's work, but it is the work of a great many men interested 

in this business "® 

When the bill as amended in the Senate came up in the House 
for re-passage, Representative Sargent of California made the fol- 
lowing comment : 

". . . . the variations from the bill as passed by the 

House are very trifling ^ In the Senate the 

Committee on Mines and Mining and the Delegates and 
members of the House from the mining Territories and States, 
aided that Committee in perfecting the bill and improving its 
machinery. The bill is now entirely satisfactory to every 
Delegate and every member of the mining States and Terri- 
tories, as well as to the Committee on Mines and Mining of 
this House."* 
The bill as amended passed without any great opposition. In 
fact the main debate and criticism came from Western members 
of Congress who were not entirely satisfied with some of the 
changes made in the original bill by the Senate amendments. The 

« Id. p. 2457. 

7 As a matter of fact they were not as trifling as Mr. Sargent would 
have led his colleagues to believe. 
« Id. p. 2897. 



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EXTRALATERAL RIGHTS 21 

right of free mining was not seriously challenged and the subject 
of the extralateral right which was again confirmed by the new act 
was not mentioned in the debates in Congress, an indication that no 
objections of consequence had as yet been made against the con- 
tinued exercise of this right.® 

The Act of 1872,^® again confirmed the right of free mining on 
the public domain that had already been recognized in the Act of 
1866. While the Act of 1872 was intended to limit the operation 
of the miners' rules and regulations and make the mining law 
throughout the West more uniform by prescribing in greater 
detail the specific acts of location, yet the first section of the act 
expressly provided that mineral lands might be acquired 

"under regulations prescribed by law, and according to the 
local customs or rules of miners, in the several mining dis- 
tricts, so far as the same are applicable and not inconsistent 
with the laws of the United States." 

In this connection the following was said during the Senate 
debate on the bill : 

Mr. TnunbuU (of Illinois). 

" .... as I understand, it adopts as law the regu- 
lations which the miners may make, which may be as various 
as the mines." 
Mr. Stewart. 

"Allow me to say that the old law (Act of 1866) adopts 
them. One of the difficulties is that they have legislated too 
extensively since the adoption of that law. This curtails their 
power of legislation, cuts it down to to a very small extent, 
takes away most of it, takes anything that can be prejudicial, 
and prescribes the rule so that their legislation cannot interfere 
with it. That is the main object of the bill." 
Section 2, provided that quartz or lode claims theretofore 
located should be 

"governed as to length along the vein or lode by the customs, 
regulations, and laws in force at the date of their location. 

•When the Placer Act of 1870 was before the House, Julien of Ohio, 
who had bitterly opposed the passage of the Act of 1866, could not resist 
the opportunity to vent again his hostility, and speaking of the extralateral 
grant of the latter Act said: "I admit that there may be a hardship in 
allowing a man to discover and hold a lode or vein of mineral which can 
be traced to the land of another from which he is debarred. There is hard- 
ship in that; but there is far greater hardship in the law as it now stands, 
recognizing the right eyerjrwhere to pursue a vein or lode on the land of 
another, inasmuch as it breeds interminable litigation and never can be 
resorted to as a method of settling titles to these lands/' Congressional 
Globe, March 17, 1870, p. 2029. 

10 U. S. Stats, at Large, p. 91 et seq. 



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22 CALIFORNIA LAW REVIEW 

A mining claim located after the passage of this Act, whether 
located by one or more persons, may equal, but shall not 
exceed, one thousand five hundred feet in length along the 
vein or lode " 

As already noted, when the bill to amend the Act of 1866 passed 
the Senate in the previous session of Congress, and when the bill, 
which, as afterwards amended, became the Act of 1872, was 
reintroduced in the next session and first passed the House, it left 
the length of the lode claims unchanged, that is, two hundred 
feet along the vein for each locator and a maximum length of 
three thousand feet in one claim for an association of persons. 
The reasons for making this change were stated by Senator 
Stewart in the course of the debate on the bill to be as follows : 

" .... In the Act of 1866 it is true that the locator 
was confined to two hundred feet, and two hundred feet ad- 
ditional for the discoverer of the lode, making four himdred 
feet. It allowed him to unite in companies until they got three 
thousand feet. In practical operation it is thought by the 
Delegates generally, and that is the experience, that three 
thousand feet is longer than can be worked at one place con- 
veniently, but fifteen hundred feet makes a very reasonable 
claim. The practice under the other law was for them to put 
in fictitious names and buy them out, and you could not pre- 
vent them doing it. This matter was discussed considerably; 
we had several meetings on this point and the committee 
thought it was best to let them do directly what was reason- 
able, and not have them do anything indirectly.*^ It is a matter 
to which I am not especially wedded, but it was the result of 
three or four meetings of all the parties interested as to which 
plan should be adopted, and this was the one which was 
selected." 

Mr. Cole,- (one of the Senators from California). 

"I have heard the Senator's explanation, and it is not 
satisfactory to me at all, because I know by the rules of 
miners claiming the mines upon these ledges for a long time, 

" It is worth noting that this same act amended the Placer Act of 
1870 by reducing the amount of ground that an individual could locate from 
160 acres to 20 acres and by providing that an association of eight persons 
was necessary to locate 160 acres in one claim. Revised Stats., § 2530. This 
change gave rise to the same use of fictitious names or "dummies'' in the 
case of placers, that Senator Stewart points out had occurred in the case 
of lodes, in order that an individual might acquire indirectly what the law 
prohibited him from acquiring directly. It is strange that this defect in the 
lode law should have been remedied by the same statute that injected it 
into the placer law. It was due to the fact that Mr. Cole of California, 
who evidently did not believe in large claims and who had objected to the 
increase of length of lode claims from 200 feet to 1500 feet, insisted on 
reducing the placer area an individual might locate from 160 to 20 acres. 
See Congressional Globe. 



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EXTRALATERAL RIGHTS 23 

two hundred feet was the limit to which they restricted each 
other, and to allow persons now to obtain title, each individual 
to fifteen hundred feet upon the l^de, is certainly a very great 
leap forward. It is in my judgment too much of an exten- 
sion."^2 

Mr. Casserly: — "Does the Senator (Stewart) consider 
that there is no danger of abuse in allowing so great a 
quantity?" 

Mr. Stewart— "None in the world."" 
Another clause of Section 2 provided that "no claim shall 
extend more than three hundred feet on each side of the middle 
of the vein at the surface," and no mining regulation was permitted 
to reduce the width to less than twenty-five feet on each side of the 
vein. This provision was an attempt to bring uniformity out of the 
chaotic condition previously existing under the Act of 1866, which 
had only prescribed a uniform linear measurement along the vein 
and had left the determination of the surface area accompanying 
the vein to be determined by local laws. The Act of 1866 had 
granted a certain length of lode, but the shape and size of the 
surface area of the claim were incidental, while the Act of 1872 
granted a surface area of prescribed dimensions containing the 
lode.** The intention of the miners under their earlier r^^lations 
prior to 1866, judging from the phraseology of the rules and their 
lack of regard for lateral surface measurements, was undoubtedly 
to secure to the locator a certain length of lode irrespective of the 
surface containing it.**^ The courts later held, however, that a 
patent granted under the Act of 1866 conveyed rights only to the 
length of lode actually included in the surface boundaries of the 
claim as patented, and the fact that greater number of linear feet 
along the lode was claimed under the rules and regulations of 
miners did not give the claimant any right to any portion of the 
length of the lode outside of his surface lines.*® The Act of 1872 
cleared up this objectionable situation by emphasizing the surface 
and prescribing a definite and conventional surface area which was 
theoretically, at least, to include the middle of the vein at the sur- 

" Congressional Globe, April 16, 1872, p. 2458. 

" Id. p. 2462. 

"Lindlcy on Mines, § 71; Gleeson v. Martin White M. Co. (1878), 13 
Ncv. 442. 

1* "... . the claim was of so much of the lode in whatever direction it 
might be found to run, with a strip of the adjacent surface, taken for con- 
venience in working the lode and as a mere incident or appurtenance 
thereto." Beatty, Report of Public Land Commission (1880), p. 397. 

'•This situation and its development is comprehensively treated in 
Lindley on Mines, §§ 58-60. 



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24 CALIFORNIA LAW REVIEW 

face. As was stated by Dr. Raymond in his comment on the Act 
of 1872: 

"The section giving absolute title to a certain surface and 
and all veins 'topping' within vertical lines drawn from the 
boundaries of that surface-claim, is necessary to prevent 
special litigation."^^ 

This surface provision of the Act of 1872 was but the adoption 
of a stereotyped form of surface measurement for lode claims 
that had been in existence for centuries in the Germanic and Derby- 
shire lode mining laws. Under these latter laws a specified surface 
width on each side of the vein at the surface was the prescribed 
mode of laying out lode claims.^® Whether these foreign laws 
served as a model in this respect is doubtful. There is nothing in 
the Congressional debates on the bill which gives us information 
on this point and the hearings of the Committee on Mines and 
Mining where the source of the provision might have been noted are 
not available. It has already been mentioned that many of the 
mining district regulations prescribed the maximum width of lode 
claims which should be measured "on each side of the center of 
the lead," and that in some of them as well as in the territorial 
legislation of Arizona a maximum total width of six hundred feet 
or two hundred yards for each claim had been prescribed." It 
is probable that this provision of the Act of 1872 was patterned 
after these local laws. 

A very interesting feature of Section 2 of the Act of 1872 was 
the concluding provision of that section providing that "The end 
lines of each claim shall be parallel to each other." The Act of 
1866 was silent on the subject of end lines of lode locations and as 
a consequnce end lines of locations made imder the Act were 
seldom parallel and often broken and of varying length. As Justice 
Field stated in the Eureka case,^® end lines or rather end line 
planes at right angles to the general course of the vein were implied 
under the Act of 1866.*^ A careful search of local* rules and state 



"Raymond, Mineral Resources (1873), p. 453. 

i»4 California Law Review, pp. 365-6, 375. 

!• Id. pp. 448-450. 

«o (1877), 4 Sawy. 302; Fed. Cas. 454a 

*iThc (jennanic and Derbyshire laws were equally silent on this sub- 
ject of the manner of making end line measurements and yet each of these 
laws was interpreted to impliedly confer extralateral rights between end 
line planes at ri^ht angles to the general course of the vein. Even under 
the Spanish mimng ordinances of 1783, the surface claim was a rectangle 
with end Unes, theoretically, at least, at right angles to the course of the 
vein. See 4 California Law Review, pp. 366-7, 375-6, 383. 



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EXTRALATERAL RIGHTS 25 

and territorial legislation fails to disclose any which provided that 
the end lines of locations should be either at right angles to the 
general course of the vein or that they should be parallel, except 
the territorial laws of Arizona which called for lode locations with 
a surface two hundred yards square and the right to follow the 
vein on its dip. Attention has been called to the fact that the bill 
introduced in Congress in 1871 and the similar bill as originally 
introduced in the next session, which eventually, as amended, 
became the Act of 1872, provided that the end lines should be 
parallel "and at right angles with the general course of the vein," 
thus adopting what had theretofore been commonly accepted as the 
legal longitudinal limitation of the segment of vein located. Why 
the right angle end line provision was eliminated from the bill 
as finally adopted and only the requirement of parallelism retained 
does not appear in the debates and was probably determined upon 
at the imreported hearings in Committee. Evidently the idea was 
to permit the locator to lay out his parallel end lines in any 
direction and thus enable him to follow down on a valuable ore 
shoot in the vein which might trend or rake away from the true 
dip or perpendicular. If this was the intention, it was "putting the 
cart before the horse," for it is rarely that the locator at the 
time of location has any idea where ore shoots exist in the piece of 
vein he locates and much more rarely that he knows their trend. 
End lines might after location be readjusted as to direction and in 
this manner the locator might be enabled to include within his 
extralateral sweep a valuable ore shoot subsequently discovered and 
to follow it down. In practice, however, by the time the facts are 
discovered, contiguous locations on the apex of the vein will 
usually prevent such readjustment. It would seem to have been 
preferable to have retained the right angle end line requirement, 
for under such a rule end lines of locations placed along the apex of 
a vein would be more nearly uniform in direction, and conflicting 
extralateral rights in depth much less frequent. Of course, a 
decided change in the direction or course of the vein at the surface 
would have produced underground conflicts if the requirement of 
end lines at right angles to the local course of the vein were strictly 
followed. But the language of the earlier mining bill called for 
right angle measurement to be made from "the general course of 
the vein." If this wording had been retained in the Act as finally 
passed it would certainly have materially lessened the litigation 
directly traceable to the extralateral right provision. By laying 



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26 CALIFORNIA LAW REVIEW 

out a base line on the surface representing the general course of 
the vein, as was done on the Comstock lode and also for a time 
in Australia, then projecting the end lines of the various 
claims taken up along the vein at right angles to this base line, 
and thus measuring the extent of each locator's right to follow the 
vein extralaterally down on its dip, there would have been afforded 
the most scientific and harmonious measure of this right possible 
to devise.^^ 

Section 3 of the Act of 1872 is as follows:" 

"That the locators of all mining locations heretofore made, 
or which shall hereafter be made, on any mineral vein, lode, 
or ledge, situated on the public domain, their heirs and as- 
signs, where no adverse claim exists at the passage of this 
act, so long as they comply with the laws of the United States 
and the state, territorial, and local regulations, not in conflict 
with said laws of the United States, governing their posses- 
sory title, shall have the exclusive right of possession and 
enjoyment of all the surface included within the lines of 
their locations and of all veins, lodes, and ledges, throughout 
their entire depth, the top or apex of which lies inside of 
such surface lines extended downward vertically, although 
such veins, lodes, or ledges may so far depart from a perpen- 
dicular in their course downward as to extend outside the 
vertical side-lines of said surface locations; provided, that 
their right of possession to such outside parts of said veins 
or ledges shall be confined to such portions thereof as 
lie between vertical planes drawn downward as aforesaid, 
through the end-lines of their locations, so continued in their 
own direction that such planes will intersect such exterior 
parts of said veins or ledges. And provided further, that 
nothing in this section shall authorize the locator or pos- 
sessor of a vein or lode which extends, in its downward 
course, beyond the vertical lines of his claim, to enter upon 
the surface of a claim owned or possessed by another." 

This section is identical with Section 3 of the bill which passed 
the Senate in 1871. It merely confirms in more elaborate and ex- 
plicit language the right which had been created by the early 
miners, subsequently written into their local regulations and state 
and territorial legislation, and later recognized in the Act of 1866. 
The only point of material difference was the extension of this 
right under the Act of 1872 to "all veins" which were found to 



22 See "The Law of Apex" (1914) by Kenney, a volume devoted to an 
expostion of this interesting principle. Also see 4 California Law Review, 
p. 385. 

28 See U. S. Revised Stats., § 2322. 



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EXTRALATERAL RIGHTS 27 

apex within the surface of each location. The Act of 1866 had 
confined the extralateral right to the one main vein. This had 
given rise to so much uncertainty and litigation that it was 
deemed best to extend the right to all veins occurring in the 
surface area located, thus removing the temptation to trespass 
cm another's claim in the attempt to discover or locate a secondary 
vein which might exist therein.** 

The use of the words "top" or "apex" with reference to the 
veins found in the surface location, appears to have been the 
first use of these terms in this relation.*" The miners' regulations 
the state and territorial legislation and the Act of 1866, all pro- 
vided for the location of a specific "length along the vein." It 
was taken for granted that this meant that the location should 
include the outcrop or "top or apex" of the vein or that portion 
of its upper or terminal edge lying nearest the surface.** With 
the appearance of these terms in the Act of 1872 came into exis- 
tence the expression the "Law of the Apex," which has since been 
extensively used to describe the extralateral right feature of the Act. 
The use of these terms, however, did not change the character 
of the extralateral right one iota; they were merely descriptive 
of a portion of the vein which it had always been assumed must 
form the basis of the location. 

This discussion is concerned only with those portions of the 
Act which have a direct bearing on the extralateral right. Sec- 
tion 4 granted a imique tunnel right which included the right 
to such veins or lodes as mig^t be discovered in the tunnel.*^ 
Aside from a provision contained in Section 11 applicable to 
veins foimd to exist in placer claims and Section 14 which pro- 
vided that priority of title should govern where veins intersected 
or crossed each other and also where they united in depth, the 
Act was devoted to other subjects than the extralateral right. 



2* **The law of 1866 was fatally deficient .... in failing to prohibit 
prospecting within the surface-lines of an already located claim" but the 
amendment of 1872 may be considered ample to remedy this defect. Ray- 
mond, Mineral Resources (1874), p. 513. See also Raymond, Mineral Re- 
sources (1870), pp. 433-436. 

"Stevens v. Williams (1879), Fed. Cas. No. 13,414. For a complete 
discussion of these terms, see Lindley on Mines, §§ 305-313. 

'* The Derbyshire and Germanic laws onlv called for a certain length 
of vein and there was no attempt to define the portion of the vein to be 
located. It was assumed that this would be the top or upper edge of the 
vein. 

*T This provision was included for the protection of certain Colorado 
miners. Senator Stewart in Congressional Globe (1872), pp. 978-9. 



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28 CALIFORNIA LAW REVIEW 

Looking at the Act of 1872 broadly we see that the funda- 
mental principles created by the miners under their own laws 
and customs, later embodied in state and territorial legislation and 
eventually crystallized in the Act of 1866, were not materially 
altered by the Act of 1872.^* The basic right of free mining 
was retained unchanged and the extralateral right was again 
confirmed, though in more elaborate language. With the excep- 
tion of the parallel end line provision which supplanted the implied 
right angle end line measurement under the previous law and the 
grant of all veins found apexing in the surface location, the extra- 
lateral right remained the same in substance. As already noted, 
the surface area obtainable under the new act was described with 
great detail. The adoption of the basic features of the miners' 
laws, and the elaborate provision contained in the Act govern- 
ing acquisition of the surface claim rendered the local rules and 
regulations of the mining districts practically obsolete. Though 
the Act recognized such local laws and customs as did not conflict 
with the federal Act their value was largely a thing of the past. 
They had served their important purpose and they gradually died 
a natural death. 

The Act of 1872 was generally considered a great improve- 
ment over the imperfect and incomplete Act of 1866.*® 

It was later codified and became a part of the federal Re- 
vised Statutes,*® and is, with a few minor additions and modifi- 
cations, the mining law in force today governing the acquisition 
of mineral lands on the public domain. The extralateral right 
feature of the Act has remained unchanged. It is not the purpose 
of this article to present the detailed interpretation of this extra- 



*« "It (the Act of 1872) recognized the essential principles found in the 
miners' regulations." Charles J. Hughes, Jr., Address on "The Evolution 
of Mining Law." XXIV, Reports of American Bar Association (1901), 
p. 344. 

2* Judge Beatty said in the Gleeson v. Martin White M. Co. case, 
supra, n. 14, referring to the Act of 1872 : "Nobody can pretend that it is 
perfect; but to our minds it is a great improvement on the system which 
it displaced." 

Dr. Raymond in commenting on the Act, wrote: "It embodies much 
that I have advocated in former reports, and I think it will be approved by 
the large body of practical miners in the United States, who whatever 
criticisms they may make upon particular provisions, must agree in com- 
mending the tone which mining legislation has assumed, and the character 
of the protection offered to their property." After making some minor 
criticisms of features of the law, he added: "Nevertheless it is certain that 
the present law is a great advance on anything we have had." Raymond, 
Mineral Resources (1873), p. 454. 

«<>§§ 2319-2337. 



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EXTRALATERAL RIGHTS 29 

lateral grant, g^dually built up by court decisions. This may be 
found in the leading works dealing with the subject of mining 
law." 

Before taking up the concluding phase of this discussion, which 
will be a consideration of the proposed abolition of the extra- 
lateral right, it may be worth while to sum up briefly the evidence 
bearing on the origin of the extralateral right in the United 
States. 

If the miners' rules and regulations were patterned after mining 
laws of other coimtries we have no direct evidence bearing on 
the question. There were men, however, who would have been 
likely to have possessed some information on this subject if it 
had existed. Senator Wm. M. Stewart who, as we have seen, 
not only took the leading part in framing the Act of 1866, but also 
did more than anyone else in drafting the Act of 1872, had spent 
years in the mining districts and associated with other Senators 
and Congressmen from the West who aided in moulding this legis- 
lation and, as the debates reported in the Congressional Globe of 
that period show, were, many of them, originally miners them- 
selves. Senator Stewart also met with delegations of miners 
from the Western States and Territories and discussed extensively 
all of the features of the mining law. 

Stephen J. Field had grown up with the mining dis- 
tricts. He represented the miners in the California State legis- 
lature in 1 85 1, and secured the enactment of the section of the 
Practice Act making the customs, usages and regulations of the 
"bar or diggings" govern in actions respecting mining claims. 
He had previously been an alcalde and later went from the 
supreme bench of the State to the Supreme Court of the United 
States. As Judge lindley has said in his eloquent tribute to 
Justice Field, he had "the practical knowledge acquired by per- 
sonal contact with the mining communities" and "was a part of 
the history of which he wrote."** 

Justice Wm. H. Beatty was for years a district judge in the 
mining regions of Nevada and became the Chief Justice of the 
Supreme Court of that state and later, up to the date of his 
recent death, was Chief Justice of the Supreme Court of Cali- 



>i Lindley on Mines, §§ 581-615; Costigan, Mining? Law, pp. 417-452; 
Barringer & Adams Law of Mines, pp. 437-470; Mornson, Mining Rights^ 
(14th ed), pp. 192-219; 1 California Law Review, pp. 336-35a 

** Lindley on Mines, § 44. 



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30 CALIFORNIA LAW REVIEW 

fomia. He was greatly interested in the miners' rules and r^^- 
lations and thoroughly conversant with their history. 

These three men were pre-eminently qualified to discuss the 
evolution of the mining law of the West ; each of them was deeply 
interested in its origin and development and they were con- 
stantly in direct contact with the pioneer miners and discussed 
problems arising out of the mining industry. One or the other 
of these men would surely have learned of the source of these 
local laws if this source were directly traceable to mining laws 
of other countries. On the contrary, we nowhere find in their 
remarkably lucid and complete presentations of the history and 
development of these laws any reference whatsoever to any foreign 
mining law as furnishing the basis for these early customs and 
regulations. 

Senator Stewart in his famous speech in the United States 
Senate advocating the passage of the Act of 1866, described the 
exciting emigration to California following upon the discovery 
of gold, saying: 

"Upon the discovery of gold in California, in 1848, a large 
emigration of young men immediately rushed to the modem 
Ophir. These people, numbering in a few months hundreds 
of thousands, on arriving at their future home found no 
laws governing the possession and occupation of mines but 
the common law of right, which Americans alone are edu- 
cated to administer. They were forced by the very neces- 
sity of the case to make laws for themselves. The reason 
and justice of the laws they formed challenge the admiration 
of all who investigate them. Each mining district, in an area 
extending over not less than fifty thousand square miles, 
formed its own rules and adopted its own customs. The 
similarity of these rules and customs throughout the entire 
mining region was so great as to attain all the beneficial re- 
sults of well-digested, general laws. These regulations were 
thoroughly democratic in their character, guarding against 
every form of monopoly, and requiring continued work and 
occupation in good faith to constitute a valid possession."'* 
Nowhere in his entire eloquent appeal for recognition of the 
principles established by the miners themselves, with its many 
detailed references to the democratic origin of these rules, does 
Senator Stewart mention their having been patterned after mining 
laws of other countries. 



««70 U. S. 777, Appendix. 



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EXTRALATERAL RIGHTS 31 

In his classic description of the gold rush to California, 

Justice Field, speaking of the pioneers, says : 

"Wherever they went, they carried with them that love 
of order and system and of fair dealing which are the promi- 
nent characteristics of our people. In every district which 
they occupied they framed certain rules for their government, 
by which the extent of ground they could severally hold 

for mining was designated," etc They were so 

framed as to secure to all comers,, within practicable limits 
absolute equality of right and privilege in working mines. 
Nothing but such equality would have been tolerated by the 
miners, who were emphatically the lawmakers, as respects 
mining, upon the public lands in the State."** 
Justice Field above all others should have known whether these 

laws were of foreign origin and yet he makes no reference to 

any such source. 

Justice Beatty while Chief Justice of the Supreme Court of 

Nevada was requested by the Public Land Commission to give 

his views on the mining laws.** From his comprehensive and 

illuminating reply the following is quoted :•• 

"When placer mining began in California there was no 
law regulating the size of claims or the manner of holding 
and working them, and local regulations by the miners them- 
selves became a necessity. They were adopted, not because 
the subject was too complicated or difficult for general regu- 
lation, but because they were needed at once as the sole 
refuge from anarchy. The first and most important matter 
to be regulated was the size of claims, and the earliest min- 
ers' rules contained little else than a limitation of the maxi- 
mum amount of mining ground that one miner might hold." 
He outlined the addition of other requirements to the placer 
rules and then added: 

"After these regulations had been some time in force came 
the discovery of veins or lodes of gold-bearing rock in place, 
and to them the law of the placer was adapted with the least 
possible change." 

It is quite clear that Justice Beatty did not have in mind any 
thought but that the lode mining regulations were founded on 
the placer rules that had just been established and that it was 
a natural step from the one to the other.*^ If he had entertained 

»* Tcnnison v. Kirk (1878), 98 U. S. 453. 457-8. 

SB Report of the Public Lands Commission (1880), pp. 395-402. 

wid. p. 396. 

*'J. Ross Browne entertained the same view, for in his report of 1867 
on Mineral Resources, p. 23L he states that the early quartz regulations 
were framed "under the influence of persons familiar only with small 
claims customary in the placers." 



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32 CALIFORNIA LAW REVIEW 

any idea that the local lode laws were patterned after any sys- 
tem of mining law imported by miners from foreign countries, 
he would certainly have mentioned a fact of such unusual in- 
terest. 

The mere failure of these three distinguished men, who were 
admittedly pre-eminent in their knowledge of the subject with 
which they were so intimately associated, to mention the fact 
that our lode mining law had a foreign origin, does not, of 
course, prove conclusively that it did not have some such basis. 
However, all fair minded persons must admit that such foreign 
influence if it actually existed must have been kept a profound 
secret, otherwise one or the other of these men would certainly 
have learned of it and called attention to it. 

The main support for the idea that our lode law and its extra- 
lateral right was derived from foreign sources is to be found in 
Yale on "Legal Titles to Mining Claims, etc." Speaking of the 
origin of these rules and regulations he says :'* 

"The real mining code, as far as it can be traced by l^^l 
ear marks, has sprung from the customs and usages of the 
miners themselves, with rare applications of common law 
principles by the Courts to vary them. Most of the rules 
and customs constituting the code, are easily recognized by 
those familiar with the Mexican ordinances, the Continental 
Mining Codes, especially the Spanish, and with the regula- 
tions of the Stannary Convocations among the Tin Bound- 
ers of Devon and Cornwall, in England, and the High Peak 
Regulations for the lead mines in the county of Derby. 
These regulations are founded in nature, and are based upon 
equitable principles, comprehensive and simple, have a com- 
mon origin, are matured by practice, and provide for both 
surface and subterranean work, in alluvian, or rock in situ. 
In the earlier days of placer digging, in California, the large 
influx of miners from the western coast of Mexico, and from 
South America, necessarily dictated the system of work to 
Americans, who were almost entirely inexperienced in this 
branch of industry, with few exceptions from the gold mines 
of North Carolina and Georgia, and from the lead mines of 
Illinois and Wisconsin. The old Califomians had little or 
no experience in mining. The Cornish miners soon spread 
themselves through the State, and added largely by their 
experience, practical sense, and industrious habits, in bring- 
ing the code into something like system. The Spanish- 
American system which had grown up under the practical 



M (1867), pp. 58-9. 



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EXTRALATERAL RIGHTS 33 

working of the mining ordinances for New Spain, was the 
foundation of the rules and customs adopted. 

"Senator Stewart has ascribed undeserved merit to the 
early miners in pronouncing them the authors of the local 

rules and customs But they were not the 

spontaneous creation of the miners of 1849-50. Historical 
accuracy ascribes a different origin to them. They reflect 
the matured wisdom of the practical miner of past ages, 
and have their foundation, as has been stated, in certain 
natural laws, easily applied to different situations, and were 
propagated in the California mines by those who had a 
practical and traditional knowledge of them in their varied 
form, in the countries of their origin, and were adopted, and 
no doubt gradually improved and judiciously modified by the 
Americans. This self-evident fact can be admitted without 
detracting from our national pride." 

Yale also gives General Halleck's opinion of their origin.'* 

"General Halleck ascribes to them a more limited origin, 
otherwise agreeing in the statement made. In his introduc- 
tion to the translation of De Fooz, he says: 'But the min- 
ers of California have generally adopted, as being best suited 
to their peculiar wants, the main principles of the mining 
laws of Spain and Mexico, by which the right of property 
in mines is made to depend upon discovery and development; 
that is, discovery is made the source of title, and develop- 
ment, or working, the condition of the continuance of that 
title. These two principles constitute the basis of all of our 
local laws and regulations respecting mining rights.' (De 
Fooz, §§5, 7.)" 

He concludes with a statement which more nearly embodies 
what is probably the real truth of the matter as far as the origin 
of these laws is concerned. 

"An examination of the mining codes of different nations, 
tracing them back to remote antiquity, and through modem 
legislation, tested by the philosophical principles of compara- 
tive law, would, probably, result in the conclusion that they 
have a common origin, maintaining certain general equitable 
principles upon which all are agreed, and diflFering only in 
the details which a diversified ownership, the peculiarities of 
race, and condition of locality necessitate." 

It seems quite certain that both Mr. Yale and General Hal- 
leck are mistaken in attributing the origin of these rules and 
regulations to Spanish influence. As already pointed out, the 
Spanish-Mexican mining laws were inoperative and unknown in 



8»Id. p. 71. 



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34 CALIFORNIA LAW REVIEW 

this new region at the time the early miners' laws were framed.*^ 
The requirements of discovery and development were universal 
requirements and were not characteristic of Spanish law alone. 

Direct Germanic influence is also doubtful and the complex 
Germanic form of extralateral right is so different from the 
simple form of this right which developed in this country that 
the Germanic extralateral right could only remotely have sug- 
gested the idea here.** 

Many writers attribute the source of our mining laws to 
Cornish influence. This idea does not seem well founded, for 
no extralateral right was exercised in the tin mines of Corn- 
wall or Devonshire and the ancient right of tin bounding or 
right of staking out a mining claim on waste land had almost 
ceased to be exercised.*^ Most of the lode mining in Cornwall 
and Devon was carried on under leases from the Duke of Corn- 
wall.** The fact that the Duke of Cornwall had the right to 
these mines and in leasing them, naturally, gave the lessee the 
right to follow the veins down indefinitely in depth and thus 
severed them from the surface, may have had something to do 
with the idea expressed in the early regulations here, that the 
vein was the principal thing and the surface a mere incident. 

It cannot be denied, however, that the Cornish influence was 
pronounced. The early and widespread use in the miners' regu- 
lations of the term "lead" or "lode" and the appearance in these 
local rules of such terms as dips, spurs, angles, slides, fitters 
(flitters), leaders, dial (survey), oflFshoots is quite positive evi- 



*o4 California Law Review, pp. 437-8; Hon. Charles T. Hughes, Jr., in 
his interesting article on "The evolution of Mining Law" (Vol. XXIV, 
Report of American Bar Association, p. 343) in summing up his views, has 
this to say on the Spanish influence: "The early miners, in their mountain 
gulches, in their humble cabins, at their primitive assemblages, unfamiliar 
with the history of mining laws and regulations in the old world, and 
even with the Spanish regulations which had prevailed in the very territory 
which they occupied, seiied upon the aptest, wisest and most beneficial 
principles which could have been adopted, and by vigorous, strenuous, inde- 
pendent, but respectful assertion of their rights, secured their recognition 
at the hands of the general government, to ue incalculable enrichment and 
advantage of the entire nation." 

^lAguillon in his "Legislation des Mines, fitrangere" (1891), Part II, 
p. 292, in commenting on the American extralateral right, says: "It is, one 
realizes, the system of defining the claim by the ancient law, notably the 
(jerman system of Langenfelder or (jestrektefelder." 

*2 "Through the scarcity of wastrel land it (in bounding) has, how- 
ever, become more or less obsolete." (Vol. II, Part I, p. 32) Transactions 
of the Mining Association of Cornwall. 

^^Bainbridge on Mines & Minerals (5th ed.), pp. 121, 133-134; Mac 
Swinney, The Law of Mines etc. (3rd ed.), pp. 176-177. 



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EXTRALATERAL RIGHTS 35 

dcnce that Comishmen supplied a large part of the mining 
vocabulary. 

The resemblance of the extralateral right which was created 
by the miners here to the similar simple form of that right 
existing in Derbyshire, England, has led many to claim a direct 
relationship. This is doubtful, and unless some direct proof of 
Derbyshire influence can be adduced, the weight of evidence 
seems rather opposed to this view. If the Derbyshire influence 
had been pronounced, we would expect the Derbyshire term 
"rake," meaning vein, to have supplanted the Q>mish "lode," and 
yet the word "rake" does not appear in any of the regulations. 

If we examine the regulations themselves, the simplicity of 
the language employed, and the variations of expression used in 
the diflFerent districts to describe the same right, lead to the con- 
viction that instead of being knowingly patterned after other 
mining codes, these local laws were merely the direct outgrowth 
of the necessities of the hour. It became necessary to appor- 
tion the placer ground among the increasing number of miners 
flocking into the mining districts and small square or rectangular 
areas of surface were naturally adopted as the size of claim to 
which each miner was entitled. But when veins became important 
it was equally natural for the miner to apportion the vein in 
short lengths and disregard the surface as something unimport- 
ant, for the vein was the thing of value. To follow the vein 
down on its dip to the extent that the miner owned of length 
was also a natural and normal sequence, for the miner was 
the discoverer of the top of the vein and why should he give 
up to another the vein on its dip when that other had nothing 
to do with finding it? Probably some such line of thought in 
the minds of these pioneers resulted in the adoption of their 
early rules regulating lode claims, including the extralateral right. 
That they did not have in mind any definite laws as a pattern 
granting the extralateral right to the locator, is further borne 
out by the fact that the extralateral right first appeared in the 
Saunders' Ledge regulations on June 6, 1851, in Nevada 
County, where the words "dips and angles" were employed to 
describe the right and one hundred feet in length on the ledge 
constituted a claim while, on June 7, 1851, only the day fol- 
lowing, the miners of Diytown Mining District, Amador County, 
adopted regulations establishing the length of claims to be two 
hundred and forty feet in length of the vein "without regard to 



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36 CALIFORNIA LAW REVIEW 

width" which was only another way of expressing the same 
idea that there was no limitation on the right to follow the 
vein in depth. Other regulations granting the same right to 
follow a certain length of vein indefinitely in depth were ex- 
pressed in language which varied in each case. This diversity 
of expression to convey the same general idea of a right to 
follow down on the vein indefinitely and also the varying length 
of vein awarded to the locator in different districts, argue strongly 
against any idea of a definite prototype which influenced the 
drafting of these regulations. 

The resemblance of many features of these regulations to 
the provisions of other systems of mining law is merely confir- 
mation of the fact that if intelligent persons are confronted with 
a state of affairs creating a situation which demands regulation 
by a set of rules, they will frequently arrive at results similar 
in their broader aspects. Dictates of common sense will usually 
direct the adoption of rules based on equitable considerations. 
It seems quite certain that the pioneer miners of California pro- 
ceeded along similar lines and met the situation which con- 
fronted them by adopting laws governing their mining opera- 
tions, similar in many respects to other laws which had been 
evolved elsewhere under like circumstances. The similarity was 
a coincidence rather than the result of a deliberate recognition 
of pre-existing laws.** 

Wm. E. Colby. 
Berkeley, California. 



**Walmesley in "The Mining Laws of the World" (1894). p. 163 says: 

"The California system was probably not due to Mexican influence. 

The principle of possessory tenure, dependent upon continued work, is 
probably German in origin, and passed from Germany to other countries. 
Together with all the other peculiarities of the California system, it was 
adopted under the pressure of the peculiar circumstances of the case, a 
great rush of population to the gold-fields, more people than room for 
them, no courts, no surveyors, and an overwhelming necessity for simple 
right of property, based on priority and possession, and determinable by 
mere tape-line measurement, without surveying. These causes adequately 
explain the whole result." The basis of most of Walmesle/s statements is 
the testimony given by Dr. Rossiter W. Raymond before the Royal Com- 
mission on Mining Royalties. (Third Report: England). 

The presence here of foreigners in large numbers from all parts of the 
world lends weight to the idea that in a broad way, at least, certain funda- 
mental principles may have been suggested by them to the original framers 
of these local codes, who may have thus been confirmed in their codification 
of similar ideas. 



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Inalienable Rights of Property: A Study of 

Contradt Obligations and Other 

Vested Rights 

IV. Individual Rights of Specific Individuals Under 
Transactions With Public Authorities. 

Whether public authorities may incur indefeasible contract ob- 
ligations in favor of individuals. — A state, or public authority 
thereof that is duly empowered, may enter into a valid and binding 
omtract with a private individual, the obligation of which can no 
more be impaired by subsequent legislation than can the obligation 
of a contract between two or more private individuals.^ In case 
of the alteration or repeal of the act by acceptance of which the 
contract arose, the contract continues to possess the same operative 
and binding force as before.* "The legislature cannot, by merely 
changing the name of a municipal corporation, or by abridging or 
enlarging its territory, so destroy its identity as to impair the rights 
of its creditors to the enforcement of their obligations against the 
original corporation."* An attempt by the legislature to ex- 
tinguish the debts of a city by disincorporating the city and causing 



1 People V. Brooks (1860), 16 Cal. 11, 47, 50; Hutton v. Frisbie 
(1869), 37 Cal. 475, 511; Rose v. Estudillo (1870), 39 Cal. 270. 274; Floyd 
V. Blanding (1879), 54 Cal. 41, 45, 4 Pac. Coast L. J. 424; San Francisco 
(Sas Light C:o. v. Dunn (1882), 62 Cal. 580, 585, 8 Pac. Coast L. J. 1083. 
Cxmtra, Myers v. English (1858), 9 Cal. 342. 349, 351. 

* People V. Brooks (1860), 16 Cal. 11, 33, 50; "If the legislature 
could destroy a contract entered into by the state by the repeal of the law 
which authorized it, no contract could ever be made binding upon the 
state. The performance of the stipulation of any contract on her part, and 
the obligations to such performance, would depend purely upon the will of 
the legislature. Such a proposition cannot be maintained." Babcock v. 
Middleton (1862), 20 Cal. 643, 656. 

•Bates V. Gregory (1891), 89 Cal. 387, 395, 26 Pac. 891. the court 
holding (pp. 395-7), that where Sacramento city was incorporated by Stats. 
1851, p. 391, with certain boundaries, and by Stats. 1858, p. 267, the city 
and county of Sacramento were consolidated into one government covering 
the whole territory of both, and b^ Stats. 1863, p. 415, the city of Sacra- 
mento was reconstituted as a distinct municipal corporation^ with the 
orisinal botmdaries, the legislature did not by such changes impair the 
ri^^ of the holders of certain bonds duly issued by the original city to 
brmg and maintain suit thereon against the city as reconstituted. 



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38 CALIFORNIA LAW REVIEW 

its property which was subject to execution to escheat to the state, 
and thereupon incorporating a new city within the same territorial 
limits but without debts, would be unconstitutional and void.* 
Where Reclamation District No. 70 (New 70) was created and its 
boundaries fixed by statute* and as so constituted it embraced 
within its limits all the territory of Swamp Land District No. 70 (Old 
70) besides other territory, the absorption of Old 70 by New 70, and, 
to that extent, extinguishment of the existence of Old 70 could 
not, even should the legislature so design, operate to impair any 
of the rights of the creditors of Old 70 in existence at the time 
New 70 was created, nor to so completely destroy Old 70 as to 
render the just claims of its creditors unenforceable against it.* 
Where the State Board of Harbor Commissioners, in consideration 
of wharfage paid it, received upon one of its Dublic wharves at 
San Francisco a consignment of coal, and by reason of want of 
ordinary care in the upkeep of the wharf, it gave way under the 
coal, and the coal was lost in the waters of the bay, the state was 
bound by such contract to the same extent that an individual en- 
gaged in the same business would have been by a similar contract, 
and was liable to that extent for its breach of contract in failing 
to exercise ordinary care for the safety of the coal, although the 
usual remedies for breach of contract were not available against it.^ 

What amounts to contract between individual and public au- 
thority. — The existence of a contract between an individual and a 
public authority must be established clearly and not by vague con- 
jecture or plausible presumption.® Yet that there may be a valid 
and binding contract between the state and a private individual, 
it is not necessary that there be a consideration moving from the 
individual to the state; it is sufficient that, on the faith of the con- 
tract, the individual has invested his money or employed his time 
and labor in furtherance of the enterprise which is the subject- 
matter of the contract.* 

Thus where a statute of 1856^® required the State Board of 
Prison Commissioners to lease for five years the state prison 



* Smith V. Morse (1852), 2 Cal. 524. 555. 

»Cal. Stats. 1905, p. 717. 

•Reclamation District No. 70 v. Birks (1911), 159 Cal. 233, 238, 
113 Pac. 170. 

^Chapman v. California (1894), 104 Cal. 690, 694, 38 Pac. 457. 43 
Am. St Rep. 158. 

•Floyd v. Blanding (1879), 54 Cal. 41, 47, 4 Pac. Coast L. J. 424. 

•Floyd V. Blanding (1879), 54 Cal. 41, 45, 4 Pac. C:oast L. J. 424. 

10 Cal. Stats. 1856, p. 48. 



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INALIENABLE RIGHTS OF PROPERTY 39 

grounds and property with the labor of the convicts, the lease 
thereof to require the lessee to take full control, custody and care 
of all convicts and erect at his own expense such buildings as 
would conduce to the safekeeping and working of the convicts, and 
to entitle the lessee to the labor of the convicts and to payment by 
the state of a monthly sum fixed by the lease, not exceeding fifteen 
thousand dollars appropriated from the state treasury per month 
for each month of the lease the amount of the payment specified 
in the lease, and required the state controller to "draw his warrants 
on the treasurer of the state for said sum" each month, and the 
treasurer "to pay the said warrants on application of said lessee 
in writing on the last day of each month," a five-year lease, made 
pursuant to said act, and providing for a monthly payment of ten 
thousand dollars to the lessee, constituted a contract, valid against 
and binding upon the state.^^ 

Subsequently, when the validity of this contract was again un- 
successfully questioned, the Supreme Court, as an additional reason 
for affirming its validity, declared:^* 

"We do not admit that an affirmation of a contract entered 
into by the agents of the state, upon a subject within the con- 
stitutional control of the legislature, can only be made by 
direct legislative action in terms designating such contract. On 
the contrary, such affirmation may be justly inferred from 
legislation indirectly referring to the contract, or proceeding 
upon its assumed validity. 

"Thus, in the act of April 7th, 1856, appropriating moneys 
to defray the expenses of the [state] prison up to March 28th, 
passed after a copy of the contract with Estill (whereby he 
took the five-year lease) had been transmitted to the senate, 
the legislature recognized the existence and in eflFect the 
validity of the contract in the provision that no person should 
receive any pay for supplies furnished under any contract with 
the directors of the prison until he surrendered such contract 
and released the state from all liability for such supplies fur- 
nished after the leasing of said prison by the Board of Com- 
missioners under an act passed at this session of the legisla- 
ture. That provision was manifestly adopted upon the suppo- 
sition that the responsibility for supplies furnished subse- 
quently to the time the prison was received by the lessee, had 
devolved upon him, and that the contract for the leasing, im- 
posing such responsibility, was valid and binding." 



"California v. McCauley (1860), 15 Gal. 429, 457. 
« People V. Brooks (1860), 16 Gal. 11, 26. 



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40 CALIFORNIA LAW REVIEW 

Hence the provision of the statute of 1859^* repealing the statute 
of 1856" above referred to, did not and could not abrogate or in 
any wise impair such lease or the obligation of the state to make 
the pa)mients thereunder.^* 

Where a statute** authorized the funding of the floating debt 
of San Francisco by exchange for twenty-year ten per cent bonds, 
known as "city stock," and provided for the collection of an annual 
tax for the payment of interest on such stock and its retirement at 
or before maturity, the act must be regarded as authorizing a con- 
tract between the city and the holders of such floating indebtedness, 
and upon exchange by any holder thereof of his old demand for 
city stock a new and binding contract between the city and such 
holder arose." Similarly, where the legislature authorized" the 
funding of the floating debt of Sacramento County by exchange for 
ten per cent bonds, payable not later than ten years after date, and 
(section 5) required the Court of Sessions to assess annually, in 
addition to other taxes, a property tax of one-fourth of one per 
cent to constitute a sinking fund for the redemption of the bonds, 
the fifth section of the act constituted a contract between the county 
and those who exchanged their old demands for the bonds.** And 
where a statute*® consolidating the city and county of Sacramento 
and providing government therefor, made provision for the levy 
within the old city limits of a property tax of one dollar on each 
hundred dollars for city purposes, for the application of certain 
other revenue to city purposes, for funding the outstanding indebt- 
edness of the city by exchange for six per cent bonds, and for the 
application of fifty-five per cent of the revenue for city purposes to 
interest on the bonds and to a sinking fund for their retirement, 
and such bonds were issued and were accepted by the creditors of 
the city in payment of their claims, a contract within the consti- 
tutional protection between the new municipality and the bond- 
holders resulted.** 



i«Cal. Stats. 1859, p. 374, § 13. 

"Gal. Stets. 1856, p. 48, c 39. 

i» People V. Brooks (1860), 16 Gal. 11, 33, 50. 

"Gal. Stats. 1851, p. 387. 

17 People V. Woods 0857), 7 Gal. 579, 584; People v. Bond (1858). 10 
Cal. 563, 570; Board of Education v. Fowler (1861). 19 Gal. 11, 23; Bab- 
cock V. Middleton (1862), 20 Gal. 643, 656. 

i« Gal. Stets. 1854. p. 201. 

"English V. Board of Supervisors (1861), 19 Gal. 172. 

wGal. Stets. 1858, p. 267. 

21 Meyer v. Brown (1884), 65 Gal. 583, 589, 26 Pac. 281; Bates v. 
Porter (1887). 74 Gal. 224, 237, 238, 15 Pac. ^32. 



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INALIENABLE RIGHTS OF PROPERTY 41 

On the other hand, where a statute"* fixed the San Francisco 
water front line, granted the use and occupation for ninety-nine 
years of certain water lots to the city, or where the city had al- 
ready granted the same, to its grantees, and provided that "the 
boundary line described .... shall be and remain a permanent 
water front of said city," and that "nothing in this act shall be 
construed as a surrender by the state of its rights to regulate the 
construction of wharves and other improvements," and such a 
prior grantee of a lot that was separated only by an intervening 
street from the waterline defined in the act, reclaimed his lot and 
constructed thereon a warehouse, there was no contract between 
him and the state; and the State Board of Harbor Commissioners 
were not debarred from afterwards re-establishing the water front 
further off shore.** 

Where a statute** relating to the incorporation of companies to 
supply municipalities with water, gave each such company the 
right to use the public streets and places for its pipes and to con- 
demn private property, on condition that it furnish pure fresh 
water to the inhabitants at reasonable rates and without discrimin- 
ation, and to the municipality free of charge "in case of fire or 
other great necessity," and provided that water rates should be 
determined annually by a board of commissioners selected, two by 
the municipal authorities and two by the water company, and in 
case the four could not agree, the four to choose a fifth member of 
the board, or if the four could not agree upon the fifth, then the 
sheriff to appoint the fifth, and the Spring Valley Water Works 
incorporated under said act, and supplied water to San Francisco 
and its inhabitants thereunder, a contract was not thereby created 
which prevented the application to the water company of the pro- 
vision of Article XIV, section one, of the constitution of 1879, 
making the board of supervisors of the municipality, in lieu of 
said board of commissioners, the rate-fixing tribunal.** 

Rights acquired in the national domain by proceedings to pur- 
chase. — ^The Act of Congress of 1841** authorized entry with a 
Register of a United States district land office of not to exceed a 
quarter section of United States public lands, by legal subdivi- 
sions, when the following conditions concurred: 

«Cal. Stats. 1851, p. 307. 

*» Floyd V. Blanding (1879), 54 Cal. 41. 4 Pac. Coast L. J. 424. 

«*Cal. Stats. 1858, p. 218. 

*» Supra, n. 36. 

«• 5 Stats, at L. 453. 



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42 CALIFORNIA LAW REVIEW 

( 1 ) The land must have been surveyed prior to entry, and 
must not be of certain excepted kinds and classes. 

(2) The prc-emptioner must be over twenty-one years of 
age, a United States citizen, or must have filed his declaration 
of intention to become one. 

(3) The pre-emptioner must not own more than three 
hundred and twenty acres of land in the United States, and 
must not have quit or abandoned a residence on his own land, 
and must not be entitled to any other pre-emptive right. 

(4) The pre-emptioner must have made settlement in per- 
son on the land he proposes to pre-empt since June i, 1840, 
must erect a dwelling and actually reside thereon, and must 
undertake to improve the same. 

Section 11 of the act provided that as between persons equally 
entitled under the act, the first settler on a given legal subdivision, 
complying with the act, is entitled to pre-empt. The Act of Con- 
gress of 1853*^ 2is modified by Act of Congress of 1854,*® made 
public lands in California, subject to certain provisos, subject to 
the foregoing act, "with all the exceptions, conditions and limita- 
tions thereof." The Act of Congress of i862** extended the priv- 
ilege of settlement upon unsurveyed lands to California, but re- 
quired the pre-emptioner to file his declaratory statement within 
three months after the receipt at the district land office of the ap- 
proved plat of the township embracing such pre-emption settlement. 
Under these acts, mere occupation and improvement of United 
States lands, with intention to pre-empt, did not confer such a 
vested interest in the land occupied as to impair in any respect the 
power of Congress to grant it to another, or otherwise dispose of it. 
The power of Congress ceases only when all the preliminary acts 
prescribed by the pre-emption laws for the acquisition of title, in- 
cluding payment or offer of payment of the purchase price, have 
been performed by the settler. Only then, for the first time, the 
settler acquires a vested interest in the land occupied by him, of 
which he cannot subsequently be deprived.'® 

By proceedings to exchange. — The Act of Congress of 1897 



27 10 Stats, at L. 244. 

28 10 Stats, at L. 268. 
2»12 Stats, at L. 409. 

«oHutton V. Frisbie (1869), 37 Gal. 475, per Sawyer, C. J., Rhodes 
and Sanderson, J J., in leading opinion (p. 491), Crockett and Sprague, H., 
dissenting (p. 504), on the ground that occupation and improvement, wim- 
out payment, created a vested right; The Yoscmite Valley Case (Hutch- 
ings v. Low) (1873), 15 Wall. 77, 21 L. Ed. 82, aflfirming Low v. Hutch- 
ings (1871), 41 Gal. 634. 638. 



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INALIENABLE RIGHTS OF PROPERTY 43 

provided"* "that in cases in which a tract covered by an unper- 
fected bona fide claim or by a patent is included within the limits 
of a public forest reservation .... the owner thereof may, if he 
desires to do so, relinquish the tract to the government, and may 
select in lieu thereof a tract of vacant land open to settlement not 
exceeding in area the tract covered by his ... . patent." In the 
rules and regulations governing Forest Reserves, adopted by the 
Land Department** it was provided that in his application for an 
exchange of lands under the foregoing act the applicant must "de- 
scribe the tract selected and the tract covered by the unperfected 
entry," and that where final certificate or patent has issued the 
applicant must execute and record a quitclaim deed to the United 
States of his land within the reserve, and furnish an abstract show- 
ing a chain of title from the United States and back again to the 
United States. Under these provisions, where in June, 1899, a 
patentee of land within a forest reserve, without selecting a tract 
in lieu thereof, recorded a quitclaim deed thereof to the United 
States and filed the same with a sufficient abstract in the United 
States land office at Visalia, and from that office the papers were 
forwarded to the conmiissioner of the general land office, who held 
them without action until January 3, 1905, and then returned 
them to the patentee, the patentee never had any contract with the 
United States, and never obtained a vested right to make a selec- 
tion of lieu lands under the act of 1897; and the repeal by Act" 
of Congress of 1905 of the provision of the act of 1897 authorizing 
the exchange, put an end to his right to make the exchange, and 
his attempt later to select lieu lands was unavailing."* 

Rights acquired in state lands by proceedings to purchase. — One 
qualified under the law existing at the time of his application to 
purchase state land, upon complying with all the requirements of 
the law and paying for the land and receiving his certificate of 
purchase, becomes entitled to a patent, and no subsequent consti- 
tutional or statutory enactment will be eflFectual to deprive him of 
the right so acquired." "Where a valid contract of sale has been 
entered into pursuant to law between the state and a purchaser so 



"30 Stats, at L. 11. 
"24 Land Dec. 589. 
w 33 Stots. at L. 1264. 

MRoughton V. Knight (1911), 219 U. S. 537, 55 L. Ed. 569, 31 Sup. Ct. 
Rep. 297, affirming (1909), 156 Cal. 123, 125, 103 Pac 834. 
wBoggs v. (ianeard (1906), 148 Cal. 711. 716, 84 Pac 195. 



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44 CALIFORNIA LAW REVIEW 

that an equitable interest in the land is vested in the latter, the 
state will, of course, be prevented by force of familiar constitu- 
tional provisions from destroying the right so vested .... But 
where there is no contract and no vested right in the intending 
purchaser, the withdrawal of the land from sale by repeal of the 
statute authorizing or otherwise, absolutely terminates the power 
of the officers of the government to take the steps necessary to 
transfer title."*® The mere application to purchase state land, 
without payment of money, vests no rights in such applicant.'^ 

The question as to when an applicant to purchase state land 
obtains a binding contract with the state and vested rights, has 
arisen in this state most often with reference to the sale of swamp 
and overflowed, salt marsh and tide lands. The statute of 1868, 
relating to the management and sale of lands belonging to the state, 
provided'* for the sale of state lands of the class mentioned at one 
dollar per acre, prescribed the contents of applications to purchase 
such land and the qualifications of applicants, required applications 
to be made to the county surveyor, directed the county surveyor, 
when the land applied for had not been surveyed, to make a survey 
thereof, and the Surveyor-General to examine such survey when 
made, and if found correct, approve it, required the applicant 
within fifty days after such approval to pay to the county treasurer 
twenty per cent of the purchase price and the first year's interest 
on the residue, and thereafter to pay such interest annually in ad- 
vance and the entire residue not later than one year after passage 
by the legislature of an act requiring payment thereof, and provided 
that whenever the county treasurer reported to the Register of the 
State Land Office that the first payment of principal and interest 
had been made, the Register should issue a certificate of purchase. 
This act formed the basis of, and provided a scheme essentially 
similar to that afterwards included in) the Political Code, section 
3440 of the code being similar to section 28 of the act, and sections 
3443-5 of the code to section 29 of the act, except that under the 
code the original application was filed with the Surveyor-General 
instead of the county surveyor. Under these provisions, an appli- 
cant has no contract with the state, and no vested rights, until his 



«« Messenger v. Kingsbury (1910), 158 Cal. 611, 615, 112 Pac. 65. 
•^Craycroft v. Superior Court (1912), 18 Cal. App. 781, 786, 124 
Pac 1042. 

'«8 Cal. Stats. 1867-8. p. 507, 514. 



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INALIENABLE RIGHTS OF PROPERTY 45 

application is approved and his first payment made.^ But upon 
payment of the first installment of purchase money to the proper 
oflficers of the state and its acceptance by them, the purchaser's 
right to the land at once vests in him,' provided that at such time 
the land is open to purchase.* The issuance of patent is not neces- 
sary to the vesting.* 

It follows that the provisions of Article XVII, section three, 
of the Constitution, restricting the sale of public land suitable for 
cultivation to actual settlers, may be given full force and eflfect as 
against an applicant to purchase such land who had not paid any 
part of the purchase price of his land at the time the Constitution 
took effect, without impairing any contract obligation or vested 
right ; ' but has no application where any part of the purchase price 
had been paid to and accepted by the proper officers of the state 
at that time.* The same is true as touching the provision of 
Article XV, section two, of the Constitution, reserving a right of 
way to navigable water, for every public use, over all tide lands 



lEckart V. Campbell (1870), 39 Gal. 256; Klaubcr v. Higgins (1897), 
117 Cal. 451, 459, 49 Pac. 466; Messenger v. Kingsbury (1910). 158 Gal. 
611, 615, 112 Pac 65; Polk v. Sleeper (1910), 158 Cal. 632, 634, 112 Pac. 
179; People v. California Fish Company (1913), 166 C:al. 576. 138 Pac. 79. 

«McCabe v. Goodwin (1895). 106 Cal. 486, 490, 39 Pac. 941, where 
the early act of 1858, Stats. 1858, p. 198, relating to swamp and over- 
flowed lands was involved, and the purchasers had made all payments; 
People V. Banning Company (1913), 166 Cal. 635, 638, 138 Pac 101, where 
the first payment of 20 per cent only was made and accepted. 

'Where certain tide lands were within two miles of the town of 
Wilmington as incorporated February 20, 1872, and disincorporated March 
12, 1887, and of San Pedro as incorporated March 1, 1888. but in the inter- 
val between the disincorporation of Wilmington and the incorporation of 
San Pedro were not within two miles of any incorporated city or town, 
and a would-be purchaser thereof made his first payment March 7, 1882, 
and his last payment December 24, 1890, and received patent October 16, 
1894, but made no payment between March 12, 1887, and March 1, 1888, 
under Art XV, J 3, of the Constitution, withdrawing tide lands within 
two miles of an incorporated city or town from grant or sale, the patent 
was void. People v. Banmng Company (1914), 167 Gal. 643. 645, 140 
Pac 587. 

*McCabc V. (}oodwin (1895), 106 Gal. 486, 490, 39 Pac 941. 

'Johnson v. Squires (1880), 55 Gal. 103, 105, 5 Pac Coast L. J. 620; 
Urton V. Wilson (1884), 65 Gal. 11, 2 Pac 411; Manley v. Cunningham 
(1887), 72 Gal. 236, 242, 13 Pac 622. 

•Laugenour v. Shanklin (1880), 57 Gal. 70, 76, 7 Pac Coast L. J. 140, 
where a person on July 1, 1852, purchased two certain land warrants from 
the state, each for 160 acres, for $650 actually paid into the state treasury, 
and on July 13, 1864, presented to and filed with the locating officer of the 
state for the Marysville Land District his request (in due form) to pur- 
chase certain described land from the state by the location of such land 
warrants thereon, and at the time of making such request surrendered to 
the locating agent, in payment for said land, such land warrants. 



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46 CALIFORNIA LAW REVIEW 

fronting on any navigable water ;^ and of Article XV, section 
three, withholding from grant or sale all tide lands fronting on 
navigable waters and within two miles of any incorporated city or 
town of this state.* 

Moreover, where the Surveyor-General refused to receive or 
file a certain application to purchase lands between high and low 
tide lines, which lands could be reclaimed without interference 
with navigation or fisheries, and did not approve the survey thereof, 
and the applicant never paid any part of the purchase price, and 
subsequently • section 3443a, withdrawing from sale lands between 
high and low water, was added to the Political Code, the applicant 
had no vested right in the lands in question, and their withdrawal 
from sale absolutely terminated his right to purchase.^® 

And where section 3499 of the Political Code ^^ limited the time 
for initiating and disposing of contests of the right to purchase 
school lands to five years from the date of issuance of the certifi- 
cate of purchase, and made the limitation applicable to pending as 
well as future contests, the application of the amendment so as to 
quash a pending contest, brought by a contestant who had not paid 
any part of the purchase price of the land in question, is proper; 
he has no vested right to be protected.*^* 

On the other hand, where a statute ^* relating to the sale of land 
inuring to the state through the recession or drainage of the waters 
of inland lakes, provided that the selling price thereof should be 

7 People V. California Fish Company (1913), 166 Cal. 576, 588, 613. 138 
Pac 79, where application to purchase certain tide lands was made before 
the Constitution of 1879 took effect, but the first instalment of purchase 
money was not paid until March 5, 1880, and the court held the purchase 
subject to Art. XII, § 2, of the Constitution. 

•People v. Banning Company (1913), 166 Cal. 635, 638, 138 Pac 101, 
where the application to purchase and survey was approved and the first 
payment on the purchase price paid to and accepted by the proper officers 
February 28, 18^ and San Pedro was not incorporated until March 1, 1888, 
a binding contract arose before the incorporation of the city which the 
state was bound to complete; People v. Banning Company (1914), 167 Cal. 
643 645 140 Pac. 587. 

'in klauber v. Higgins (1897), 117 Cal. 451, 463, 49 Pac. 466, a statute 
shnilar to Art. XV, § 3, Stats. 1869-70, p. 875, amendatory of § 70 of Stats. 
1867-8, p. 507, was passed after an application to purchase tide lands within 
two miles of San Diego city had been made, and before the application was 
approved or first payment made; and a subsequent attempt on the part of 
the officers of the state to complete the sale, and the patent issued in pur- 
suance thereof, were held void. 

» Cal. Stats. 1909, p. 774. 

10 Messenger v. Kingsbury (1910), 158 Cal. 611, 615, 112 Pac 65. 

11 As amended by Cal. Stats. 1911, p. 345. 

"Craycroft v. Superior Court (1912), 18 Cal. App. 781, 786, 124 Pac. 
1042. 

w Cal. Stats. 1893, p. 341. 



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INALIENABLE RIGHTS OF PROPERTY 47 

"paid into the school fund of the county where the land lies," and 
that if the reclamation of land sold was necessary, all provisions of 
law regulating the reclamation of swamp and overflowed lands 
should apply, and the law so referred to provided ^* that upon the 
completion of the reclamation works the purchase price of the land 
within the reclamation district should, — subject to certain deduc- 
tions, — ^be repaid to the purchasers, the provision for such repay- 
ment constituted a contract between purchasers and the state which 
the state could not disregard.^** 

Franchise rights, — A franchise is, in the grantee thereof, a 
vested right of property, subject, however, in most cases, to the 
performance of conditions upon the part of the grantee, and so long 
as these are performed, cannot be divested, or transferred to an- 
other, by legislative authority, the grantee not consenting." 

Thus to the extent that a telegraph corporation, by construct- 
ing, maintaining and operating telegraph lines along and upon 
public streets in Los Angeles city, accepted the grant contained in 
section 536 of the Civil Code, which provided: "Telegraph cor- 
porations may construct lines of telegraph along and upon any 
public road or highway, along or across any of the waters or lands 
within this state, and may erect poles, posts, piers, or abutments 
for supporting the insulators, wires, and other necessary fixtures 
of their lines, in such manner and at such points as not to incom- 
mode the public use of the road or highway or interrupt the navi- 
gation of the waters;" it secured a vested right, subject only to 
the proper exercise of the police power.^^ 

Where a gas company by constructing and operating in a por- 
tion of Los Angeles city gas works and a distributing system of 
much larger capacity than requisite to supply the territory then 
reached and of so great size that they could not be operated profit- 
ably without contemplated extensions into other territory, and by 
supplying gas light to inhabitants in territory then reached, and 
contracting to supply it to inhabitants not then reached, had ac- 
cepted as to all streets necessary to serve the whole city the fran- 
chise oflFered by Article XI, section nineteen,^® of the state consti- 



i*Cal. Pol. Code, § 3477. 

"McCord V. Slavin (1904), 143 Cal. 325, 331, 332. 76 Pac. 1104. 

i«Fall v. Sutter County (1862), 21 Cal. 238, 252; California State Tele- 
graph Co. v. Alta Telegraph Co. (1863), 22 Cal. 398, 422, 425, 429. 

IT Western Union Telegraph Co. v. Hopkins (1911), 160 Cal. 106, 119, 
116 Pac 557. 

"Before the amendment of 1911 this provided: "In any city where 
there are no public works owned and controlled by the municipality for 



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48 CALIFORNIA LAW REVIEW 

tution, the grant, resulting from the acceptance, constituted a 
contract, and vested in the company a property right, protected by 
the Federal Constitution, which the state could not take away by 
the amendment of 191 1 to said constitutional provision.^* 

Where, however, a franchise to construct and maintain a bridge 
and collect tolls thereon for twenty years is not by its terms ex- 
clusive, it does not divest the legislature of all power to grant a 
similar franchise to any other person in the same vicinity, and the 
grantee does not have the right to insist that no franchise of like 
kind the effect of which will be to impair the value and take away 
the profits of his own shall be granted, nor to insist that the public 
authorities shall not build a free bridge with similar effect.^^ 

And where at the time a cable railroad was constructed in Los 
Angeles city pursuant to a franchise therefor, it was provided in 
section 499 of the Civil Code that, "Two lines of street-railway, 
operated under different managements, may be permitted to use 
the same street, each paying an equal portion for the construction 
of the track and appurtenances used by said railways jointly," 
the reservation of section 499 entered into the contract of the cable 
company, and it did not have any exclusive right to the portion of 
the street in which its road was constructed, and a subsequent 
grant of franchises for an electric road, extending for three blocks 
over the route of the cable road, and the entry by the electric road 
into joint use of the tracks of the cable road on such three blocks 



supplying the same with water or artificial light, any individual or ... . 
company .... shall .... have the privilege of using the public streets 
.... thereof, and of laying down pipes and conduits therein, and con- 
nections therewith, so far as may be necessary for introducing into and 
supplying such city and its inhabitants either with .... illuminating light, 
or with fresh water .... upon the condition that the municipal govern- 
ment shall have the right to regulate the charges thereof." 

i» Russell V. Sebastian (1914). 233 U. S. 195, 58 L. Ed. 912, 34 Sup. Ct. 
Rep. 517, Ann. Gas. 1914C 1282, reversing Matter of Russell (1912), 
163 Gal. 668, 676, 126 Pac. 875. Ann. Gas. 1914A 152, where it had been 
held that the acceptance extended only to streets actually occupied when 
the amendment of 1911, repealing the state's offer theretofore contained in 
Art. XI, § 19, took effect; Oro Electric Gorporation v. Railroad Gom- 
mission (1915), 169 Gal. 466, 480, 147 Pac. 118. 

Where on October 10, 1911, when the amendment to Art. XI, § 19, of 
the state constitution was approved, a corporation engaged in suppl3ring the 
inhabitants of San Francisco with gas and electric light had pipes and con- 
duits for that purpose in various public streets of the municipality, includ- 
ing 6th Street between Stevenson and Jessie, it on said day had a vested 
ri^t to occupy such part of the street for the purpose specified in § 19, 
and subject to the limitations therein contained. Matter of Application of 
Kew)elmann (1914), 166 Gal. 770, 773, 138 Pac. 346. 

20 Fall V. Sutter Gounty (1862), 21 Gal. 238, 252., 



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INALIENABLE RIGHTS OF PROPERTY 49 

was not a taking of private property for public use and did not 
involve an exercise of the power of eminent domain.*^ 

V. Rights of Individuals in Specific Property. 

Power of testamentary disposition. — The power of testamen- 
tary disposition is not an essential incident of property; and 
the legislature can, without depriving a husband of any vested 
right of property, take from him testamentary power with ref- 
erence either to the community or his separate property.*' 

Property by succession, — The right of an heir to his inheri- 
tance depends upon positive law, and is not a natural or absolute 
right; and it is competent for the legislature to change the 
rule of inheritance, to restrict the testamentary power, and to 
provide that the heir or devisee shall take subject to certain 
burdens, such, for instance, as the pa)niient of the decedent's 
debts or a family allowance.*^ Statutes of descent are always 
subject to legislative control and may be changed or abolished 
at will, because the right of descent, being a mere expectancy, 
is not a vested right.** But upon the death of an ancestor the 
heir or devisee becomes at once vested with the full property, 
subject only to liens and burdens then existing or created by 
statutes then in force, and to the temporary right of possession 
of the executor or administrator. The legislature has no power 
thereafter to divest it, as by an enactment ordering the sale of 
property of a decedent for a purpose other than one for which 
the sale was authorized at the time of the decedent's death.*** 

Thus, as the Probate Act of 1851 authorized a sale of a 
decedent's real estate by his personal representative only when 
the personal estate in his hands was "insufficient to pay the 
allowance to the family and all debts and charges of the ad- 



" Pacific Railway Co. v. Wade (1891), 91 Cal. 449, 27 Pac. 768, 25 Am. 
St Rep. 201, 13 L. R. A 754. 

22Spreckels v. Spreckels (1897), 116 Cal. 339, 48 Pac. 228, 58 Am. St 
Rep. 170, 36 L. R. A. 497. 

"Brcnham v. Story (1870), 39 Cal. 179; In re Porter's Estate (1900), 
129 Cal. 86. 61 Pac. 659, 79 Am. St Rep. 7a 

2*Hamion v. Southern Pacific R. R. Co. (1909), 12 Cal. App. 350, 107 
Pac. 335. 

25Brenham v. Story, supra, n. 23; In re Packer's Estate (1899), 125 
Cal. 396, 58 Pac 59, 73 Am. St. Rep. 58; In re Porter's Estate, supra, n. 
23; In re Newlove's Estate (1904), 142 Cal. 377, 75 Pac. 1083; In re 
Patterson's Estate (1909), 155 Cal. 626, 102 Pac. 941, 132 Am. St. Rep. 
116, 26 L.R.A. (N.S.) 654, 18 Ann. Cas. 625. 



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50 CALIFORNIA LAW REVIEW 

ministration,"^' a subsequent statute*^ authorizing the adminis- 
trator of the estate of one Charies White (who died in 1853) 
to sell at public or private sale, subject to confirmation by the 
probate judge "as he may deem just and proper and for the 
interest of said estate," all or any of the real property of the 
decedent as in his judgment "will best promote the interest of 
those entitled to the estate," is invalid to authorize a sale for 
any purpose other than those specified in the Probate Act.** The 
amendment, to Section 1536 of the Code of Civil Procedure,** 
passed in 1893, authorizing a sale of real property of a dece- 
dent for the reason, additional to those theretofore recognized, 
that it is for the advantage, benefit and best interests of the 
estate and those interested therein, cannot apply in the admin- 
istration of the estate of a decedent who died before the passage 
of the amendment;*^ but as to estates of those who die there- 
after, it is in full force and eflFect.'* 

Where one died in 1879, leaving personal property, a note 
and mortgage subject to sale in the administration of his estate 
if "for the best interests of the estate,"'* whether the sale was 
necessary to pay debts or not, and by subsequent proceedings 
in the course of administration such personal property was con- 
verted into real property by foreclosure of the mortgage security 
and the buying in of the mortgaged property, said property was 
not thereby relieved of the burden of being subject to sale if 
"for the best interests of the estate." Consequently when by a 
subsequent amendment** its sale on that groimd was authorized, 
said land might be sold pursuant to the power thereby con- 
ferred, without interference with any vested right.** 

Community property, — ^Under a statute of 1850 defining the 
property rights of husband and wife,** the husband was given 
by Section 9 "the entire management and control of the com- 
mon property, with the like absolute power of disposition as 

««Cal. Stats. 1851, p. 448, 467. 

"Cal. Stats. 1860, p. 148, as amended by Cal. Stats. 1861, p. 152. 

*« Brenham v. Story, supra, n. 23. 

2»Cal. Stats. 1893, p. 212. 

»oin re Packer's Estate, supra, n. 25; In re Freud's Estate (1901), 
131 Cal. 667, 63 Pac. 1080, 82 Am. St Rep. 407; In re Newlove's Estate, 
supra, n. 25. 

81 In re Porter's Estate, supra, n. 23. 

82 Cal. Code Civ. Proc, § 1523. 
»»Cal. Stats. 1893, p. 212. 

8* In re Bazzuro's Estate (1911), 161 Cal. 71, 118 Pac. 434. 
»»Cal. Stats. 1850, p. 254. 



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INALIENABLE RIGHTS OF PROPERTY 51 

of his own separate estate." Section 11 declared: "Upon the 
dissolution of the community by the death of either husband 
or wife, one-half of the common property shall go to the sur- 
vivor, and the other half to the descendants of the deceased 
husband or wife, subject to the payment of the debts of the 
deceased. If there be no descendants of the deceased husband 
or wife, the whole shall go to the survivor, subject to such 
payment." The provisions of section 11 were amended in 1861 
so that in case of the death of the wife the husband took all 
the community property, while in case of the death of the 
husband the wife took but half as before, and the other half 
went to certain of his heirs subject to his right of testamen- 
tary disposition.'* The details of this plan were later changed 
in minor particulars.'^ The scheme as thus developed was car- 
ried substantially into the Civil Code.*' 

Under these provisions, it has been held that the wife's in- 
terest in the community property, during coverture, is not vested, 
but is a mere expectancy like that of an heir in the property 
of his ancestor;** but upon the husband's death, vests.** It is 
further said that upon the dissolution of the marriage by judicial 
decree making no mention of property, she becomes vested with 
one half of the community property as cotenant with her hus- 
band." 

On the other hand, it has been held that the husband's in- 
terest in the community property is at all times vested.** Thus 
section 172 of the Civil Code, giving the husband management 
and control and absolute power of disposition of the conmiunity 
property, was amended in 1891 by the addition of the f oUowing pro- 

wCal. Stats. 1861, p. 310. 

8TCal. Stats. 1863, p. 363. 

»«§ 172 contains a provision like that of § 9 of the act of 1850, and 
S§ 1401 and 1402 contain provisions like those of § 11 as amended in 1864. 

»»Van Maren v. Johnson (1860), 15 Cal. 308; Packard v. Arellancs 
(1861), 17 Cal. 525; Grdner v. Greiner (1881), 58 Cal. 115. 8 Pac. Coast. 
L.J. 119; People v. Swalm (1889), 80 C:al. 46, 22 Pac. 67, 13 Am. St. 
Rep. 96; In re Burdick's Estate (1896), 112 Cal. 387, 44 Pac. 784; In re 
Moffitfs Estate (1908), 153 Cal. 359, 95 Pac. 653, 1025, 20 L.R.A. (N.S.) 
207. 

*^ Packard v. Arellanes, supra, n. 39. 

** In re Burdick's Estate, supra, n. 39. 

*2Van Maren v. Johnson, supra, n. 39; Packard v. Arellanes, supra, 
n. 39; Greiner v. Greiner, supra, n. 39; People v. Swalm, supra, n. 39; 
Spreckels v. Spreckels, supra, n. 22, where it was said: "The husband's 
ownership of one-half of the communihr estate is in a sense conditional. 
It may terminate upon the happening 01 a possible event. Until then, he 
is, however, absolute owner as defined in the code." 



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52 CALIFORNIA LAW REVIEW 

viso : **provided,however, that he cannot make a gift of such com- 
munity property, or convey the same without a valuable consid- 
eration, unless the wife in writing consent thereto."*' It was 
held that to apply the amendment to community property ac- 
quired prior to its passage would be to deprive the husband 
of a vested right of property, and is beyond legislative power.** 
The following additional proviso was added in 1901 : "provided, 
also, that no sale, conveyance, or incumbrance of the furniture, 
furnishing and fittings of the home, or of the clothing and wear- 
ing apparel of the wife or minor children, which is community 
property, shall be made without the consent of the wife."**^ It 
is clear that this amendment has no application to community 
property acquired before such amendment.** 

Again, it has been held by four justices of the Supreme 
Court that the husband upon the death of the wife takes all, 
and (two justices dissenting) that the wife upon the death of 
the husband takes her share of the community property by suc- 
cession and not survivorship.*^ 

The only extended argument in the decisions in support of 
the foregoing views is that in Spreckels v. Spreckels,*® as fol- 
lows: 

"Prior to the amendments of 1891 the code vested in the 
husband, with reference to the conmiunity property, all the 
elements of ownership, and in the wife none. . . . 

"As to all the world except the wife, there was, prior to 
this amendment, no distinction between the community es- 
tate and the separate estate of the husband. If suit were 
brought upon a liability incurred in a business, the profits 
of which would be community property, and judgment re- 
covered, execution could be levied upon the separate estate 
of the husband and the debt entirely satisfied therefrom. 
His separate estate, during the entire marriage, is liable to 
be taken for community debts, and of course furnishes a 
credit in aid of community business. If the community 
loses, the loss may fall upon his separate estate, but his 
separate estate cannot profit by the success of the com- 
munity. 

"The separate property^ of the wife is exempt from all 



*8 Cal. Stats. 1891, p. 425. 

** Spreckels v. Spreckels, supra, n. 22; Qavo v. Qavo (1909), 10 
Cal. App. 447, 102 Pac. 556, 36 L. R. A. (N. S.) 1041. 
«CaI. Stats. 1901, p. 598. 

*« Duncan v. Duncan (1907), 6 Cal. App. 404, 92 Pac. 310. 
*^In re Burdick's Estate, supra, n. 39. 
*« Spreckels v. Spreckels, supra, n. 22. 



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INALIENABLE RIGHTS OF PROPERTY 53 

these liabilities, but, on the other hand, the community 
property is liable for debts incurred by the husband in the 
management of his separate estate. 

"Now, all these differences point to the fact that the 
husband is the absolute owner of the conmiunity prop- 
erty. . . . 

"If the property did not belong to the husband, there 
would be no occasion for a law limiting his testamentary 
power with reference thereto." 
This argiunent leaves out of account several important con- 
siderations. The community property is the result of the in- 
dustry and frugality not only of the husband but of the wife 
as well. In case the husband exercises his power of absolute 
disposition, the proceeds, if any, belong to the conununity. 
When he engages in business enterprise, it certainly is only fair 
that he should be willing and required to take the same risk 
with respect to his own separate property that he takes with 
respect to property to the accumulation of which the industry 
and frugality of another has contributed; he certainly should 
not take with property to which another has so contributed, a 
risk he is unwilling to take with his own. In the language 
of the code, the husband has only, as touching the conununity 
property, "entire management and control .... with .... 
absolute power of disposition:" he does not have those most 
important elements of ownership, exclusive use, possession and 
enjoyment. In fact, the words just quoted, in which his power 
is expressed, are appropriate to the vesting in him of a power, 
not an estate. That he has such a power in the conmiunity 
property, but that the estate therein is vested in his wife equally 
with himself, is the only view that is entirely consistent with 
section 682 of the Civil Code which provides: 

"The ownership of property by several persons is either: 

1. Of joint interests; 

2. Of partnership interests; 

3. Of interest in common; 

4. Of conununity interest of husband and wife." 

As said by two justices of the Supreme Court, concurring 
in a judgment, but dissenting on the point to which the state- 
ment was directed:** 

"The entire provisions of the Civil Code are at variance 
with treating the husband as the owner of the community 

♦•Per Harrison and Garoutte, J J., concurring in judgment in re 
Bnrdick's Estate, supra, n. 39. 



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54 CALIFORNIA LAW REVIEW 

property. If he were the owner he would have the abso- 
lute dominion over it, with the right to use it or dispose 
of it according to his pleasure; but .... these attri- 
butes of ownership are denied him. Section 682 of the 
Civil Code specifies the community interest of husband and 
wife as one species of property which is owned by several 
persons. The necessary implication therefrom is that the 
husband and the wife are the 'several persons' in whom is 
vested this ownership of the community property. This 
ownership is not absolute in either, but in each of them is 
qualified by reason of its being shared with the other." 
Other intimations and statements in line with the same view 
may also be found in the cases.*^ In this view, the relation of 
husband and wife with reference to the conmiunity property is 
like that of a general to a special partner. 

But, finally, in any view of the points already discussed, so 
far as concerned community property accumulated while sec- 
tion II of the act of 1850 as originally enacted was in force, 
the husband had no valid constitutional objection to that clause 
which took from him, in certain cases, upon his wife's death, 
one-half of the commimity property; he held all such property 
subject to the law in force when it was accumulated.*^ 

Corporeal property, (a) Regulating use in general. — ^The 



60 In De Godey v. Godey (1870), 39 Gal. 157, Wallace, Sprague, 
Crockett and Temple, J J., in leading opinion, said: "It is true that the 
interest of the wife therein pending the marriage has been termed *a 
mere expectancy* . . . . ; but while, perhaps, no other technical designa- 
tion would so nearly define its character, it is, at the same time, 
an interest so vested in her as that the husband cannot deprive her of it 
by his will .... nor voluntarily alienate it for the mere purpose of 
divesting her of her claims to it." 

Other cases, also declare that a voluntary convejrance by a husband 
of the common property, or any portion of it, for the purpose of de- 
feating the claims of the wife, will not be sustained. Smith v. Smith 
(1859), 12 Cal. 216; Peck v. Bnimmagim (1866), 31 Cal. 440, 89 Am. 
Dec. 195; Lord v. Hough (1872), 43 Cal. 581. 

It has also been debated whether or not a wife during coverture can 
maintain an action to set aside such a fraudulent transfer of community 
property by the husband. In Greiner v. Greiner, supra, n. 42, Morrison, 
C. J., and Myrick, J., concurring in the judgment, affirmed the right of 
the wife so to do; Thornton and Sharpstein, J J., in the leading opinion 
denied her right so to do until a dissolution of the marriage. In Cum- 
mings V. Cummings (1887), 2 Cal. Unrep. Gas. 774, 14 Pac. 562, Thorn- 
ton, J., writing the opinion of Dep't. 2, again denied this right; but a 
rehearing was granted, and in the opinion on rehearing by McKinstry, 
J., (1888), 75 Cal. 434, 17 Pac. 442, this question was not considered. 
In Duncan v. Duncan, supra, n. 46, the District Court of Appeal hazarded 
the opinion that it was possible that under some circumstances such an 
action might be maintained. 

•iPadcard v. Arellanes, supra, n. 39. 



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INALIENABLE RIGHTS OF PROPERTY 55 

legislature cannot declare the usual and ordinary use of prop- 
erty a nuisance, when such use infringes no one's legal rights.'* 
An ordinance which prohibits the use of land and appurtenances 
in a lawful business in an innocent manner, must be declared 
void as an unwarranted infringement of inalienable rights of 
property.^* 

(b) Use as between adjoining owners, — ^The fact that a cer- 
tain use of one's land will obstruct the light and air of an ad- 
joining landowner, does not render it competent for the legis- 
lature to give such adjoining landowner the right to prevent it/* 

(c) Use where subject to easement of way. — ^Where title to 
a public street of a city, subject to the public easement, is in 
the owners of the abutting land, any such owner, subject to 
reasonable regulation to insure the least interruption of the pub- 
lic easement, has a vested right to lay a waterpipe for his own 
use under the street and to make the necessary excavation therein 
for such, or any other, legitimate purpose that does not impede 
the public use.** 

(d) Changing joint tenancy to tenancy in common, — ^A 
statute** passed in 1855 providing: "Every interest in real estate 
granted or devised to two or more persons, other than execu- 
tors and trustees as such, shall be a tenancy in common imless 
expressly declared in the grant or devise to be a joint tenancy," 
thereby reversing the rule theretofore prevailing, did not destroy 
the joint tenancy created by a deed to two grantees, made in 
1853." 

(e) Creating liens by operations of law. — ^A statute** author- 
izing the distraint of trespassing hogs in certain counties at cer- 
tain seasons of the year, and creating a lien thereon for the 
damage done and the cost of keeping them and of enforcing the 
lien, is not in excess of legislative power.** 

While the vaUdity of various provisions of the Mechanics' 

"Western Granite & Marble Co. v. Knickerbocker (1894), 103 Cal. 
Ill, 37 Pac 192. 

»» Abbey Land & Improvement Co. v. San Mateo County (1914), 167 
Cal. 434, 139 Pac. 1068. 

** Western Granite & Marble Co. v. Knickerbocker, supra, n. 52. 

"Colegrove Water Co. v. Hollywood (1907), 151 Cal. 425, 90 Pac. 
1053, 13 L. R. A. (N. S.) 904. 

wCal. Stats. 1855, p. 171. 

»7 Dewey v. Lambier (1857), 7 Cal. 347. 

wCal. Stats. 1857, p. 106. 

"Rood V. McCargar (1874), 49 Cal. 117. 



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56 CALIFORNIA LAW REVIEW 

lien Law has at times been questioned, the latest decisions sus- 
tain in its entirety the law as amended in 191 1.*® 

«oin Hicks v. Murray (1872), 43 Cal. 515. the court held not con- 
stitutionally objectionable the provision of section 1 of Cal. Stats. 1867-8^ 
p. 589, the Mechanics' Lien Law of 1868, that every person "having charge 
of any mining, or of the construction, alteration or repair, either in 
whole or in part, of any building or other improvement, .... shall be 
held to be the agent of the owner for the purposes of this act;" also 
the provision of section 3 that "all liens created by this act upon any 
building or other improvement shall be preferred to all prior liens, mort- 
gages, or other encumbrances upon the land upon which said building or 
other improvement shall have been constructed, or situated when altered 
or repaired." In Latson v. Nelson (1883), 2 Cal. Unrep. Cas. 199, 11 
Pac. Coast L.J. 589, it was declared that the inalienable rights of prop- 
erty would lose much of their force should the court sustain the pro- 
vision of section 1183 of the Code of Civil Procedure, as amended by 
C^l. Stats. 1880, p. 62, that the liens therein declared in favor of me- 
chanics, materialmen, artisans, architects and laborers, "shall not be 
affected by the fact that no money is due, or to become due, on any con- 
tract made by the owner with any other party." In Gibbs v. Tally (1901), 
133 Cal. 373, 65 Pac. 970, 60 L. R. A. 815, it was stated that where a land- 
owner enters into a valid contract for the improvement of his land, the 
most the legislature can do is to cause the contract price to be applied to 
the payment of the demands of those furnishing labor and materials to 
the contractor. The contract price cannot be exceeded. In Hampton v. 
CHiristensen (1906), 148 Cal. 729, 84 Pac 200, it was said that if the 
provisions of section 1184 of the Code of Civil Procedure, as amended by 
Cal. Stats. 1887, p. 152, should be construed as den)ring the owner the 
right, before applying, in satisfaction of liens, the payment due under 
that section upon the completion of a building contract, to deduct there- 
from the cost of remedying defects in the performance of the contract 
and the datnages to which under the contract he is entitled for delay in 
the completion of the contract, it is indubitably void. In Stimson Mill 
Co. V. Nolan (1907), 5 Cal. App. 754, 91 Pac. 262, in which case a rehearing 
was denied by the Supreme Court, it was, however, declared that where 
a landowner causes another to create a structure on his land, it becomes 
a part thereof charged with the liens of the laborers and materialmen 
who created it, that it having by his own act become a part of his land, 
it is not inequitable nor destructive of his rights to say that the liens 
should also extend to the land necessary for the use of the structure, 
and that it is no infringement upon any existing right of property to 
require the owner to pay to the laborer or materialman for the work 
or materials bestowed in the creation of the structure which he procured, 
the full value thereof. Finally, in Roystone Co. v. Darling (1915), 171 
Cal. 526, 154 Pac. 15, it was held that, considered as a whole, Cal. Stats. 
1911, p. 1313, relating to the liens of mechanics and others upon real 
property, removing the restrictions as to the time of payment of the 
contract price of original construction contracts first introduced by amend- 
ment by Cal. Stats. 1885, p. 143, to section 1184 of the Code of Civil 
Procedure, providing that the liens of others than original contractors 
shall be limited only by the reasonable value and contract price of labor 
and materials furnished by them, irrespective of the state of accounts 
between the owner and original contractor, unless before the commence- 
ment of work, the original contractor, together with a bond with sureties in 
an amount not less than 50 per cent of the contract price of said con- 
tract, and conditioned for the payment in full of the claims of all per- 
sons performing labor upon or furnishing materials to be used in the 
work contracted for, be filed in the County Recorder's oflfice, in which 
event the recovery on liens must be limited to the amount due from the 
owner to the original contractor, was valid 



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INALIENABLE RIGHTS OF PROPERTY 57 

(f) Requiring notice to avoid liens. — ^Thcre is no doubt of 
the power of the legislature to enact that part of the Mechanics' 
lien Law of i868,*^ which provided that in case of the con- 
struction, alteration or repair of any improvement upon land with 
the knowledge of the owner of claimant of any interest therein, his 
interest shall be subject to the liens created by the act, unless 
within three days after he obtains knowledge of the work, or 
intended work, he posts written notice that he will not be re- 
sponsible for the same in a conspicuous place upon said land 
or the improvements thereon.** With modifications in detail, 
section 1192 of the Code of Civil Procedure*' has been the 
equivalent of this provision of the statute of 1868. 

(g) Recording laws, — A provision of a statute of 1850 re- 
quiring conveyances of real estate theretofore made to be re- 
corded, and making void any such conveyance when unre- 
corded as against any subsequent purchaser in good faith for 
value whose own conveyance is first recorded,** does not impair 
vested rights, notwithstanding recording was not theretofore re- 
quired, it being proper to require a transferee of land to take 
precautions for the protection of innocent third persons from his 
own omission.** 

Where, by a statute of 1851 protecting the homestead from 
forced sale except in certain enumerated cases, no declaration of 
homestead was requisite,** but by a statute of i860 a declaration, 
written, acknowledged and recorded, was required in the creation 
of new homesteads, it was held that there was no constitutional 
objection to a statute*^ of 1862, also requiring such a declaration 
in case of homesteads arising before the act of i860 took eflFect, 
and providing that any homestead not so declared shall cease from 
and after June i, 1862.** 

(h) Requiring owner to prove his title. — ^The Act of Con- 
gress of 1851** is not open to constitutional objection^® in requiring 



" Cal. Stats. 1867-8, p. 589. 

"Fuquay v. Stickney (1871), 41 Cal. 583; Hicks v. Murray (1872), 
43 Cal. 515. 

••Since the amendment by Cal. Stats. 1873-4, p. 409. 

•*Cal. Stats. 1850, p. 249. 

••Stafford v. Lick (1857), 7 Cal. 479. 

••Cal. Stats. 1851, p. 296. 

•'Cal. Stats. 1862, p. 519. 

••Noble V. Hook (1864), 2* Cal. 63a 

•• (March 3, 1851), 9 U. S. Stats, at L. 631. 

'•Estrada v. Murphy (1861), 19 Cal. 248. 



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S8 CALIFORNIA LAW REVIEW 

every claimant of land in California by Spanish or Mexican g^rant 
to present to the land commissioners constituted by the act, the 
documentary and oral evidence on which he relies to sustain his 
claim, and in providing "that all lands, the claims to which have 
been finally rejected .... and all lands the claims to which 
shall not have been presented to said commissioners within two 
years after the date of this act, shall be deemed .... part 
of the public domain of the United States," as against the clai- 
mant of a grant by imperfect title, as where the grant was of a 
specified quantity of land to be thereafter laid off by public auth- 
ority within a much larger tract. 

(i) Extending protection to mere occupant of land. — The 
provisions of a statute^^ of 1856 passed for the protection of actual 
settlers on land which declared that in actions to recover land 
wherein plaintiff claims by federal or state patent or Spanish or 
Mexican grant, the defendant shall, unless his possession was ob- 
tained by force or fraud or as tenant or by entry upon inclosed 
lands claimed under Spanish or Mexican grant or such grant had 
been surveyed, and the grant, plat and field notes recorded, and 
the boundaries marked so as to be easily and certainly known, 
be entitled to set off the value of improvements made by him and 
of his growing crops, and that plaintiflF must pay defendant such 
value or forfeit the land to him, are unconstitutional.^* A statute 
of 1858, providing that any person heretofore or hereafter ousted 
from the possession of any land by a writ of restitution issued 
against him in an action wherein the prevailing party claimed 
under a foreign grant, afterwards finally rejected, or finally lo- 
cated so as not to include such land, is entitled, in a subsequent 
action against such party and those succeeding him in the pos- 
session of such land, to recover the possession of such land, and 
from the party by whom he was ousted his costs and damages by 
reason of the ouster, and from those in possession since the ouster 
the rents and profits of the land during the time that each was in 
possession,^* is unconstitutional.^* 

(j) Authorizing entry for mining on land held by mere occu- 

"Cal. Stats. 1856. p. 56. 

"Billings v. Hall (1857), 7 Cal. 1; Lathrop v. Mills (1861), 19 Cal. 
514. 

78 Cal. Stats. 1858, p. 345. 

7* Rich V. Maples (1867), 33 Cal. 102. where defendant, the bolder of 
a Mexican grant of two leagues within a larger tract, had ousted plaintiflF 
from the possession of a part of the larger tract not included within the 
grant as finally segregated. 



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INALIENABLE RIGHTS OF PROPERTY 59 

pancy. — ^A statute of 1855 made it a misdemeanor for any person 
for mining purposes to injure, undermine, or destroy any growing 
crops of grain or garden vegetables, house, building, or other 
superstructure, or fruit trees, the property of another upon min- 
eral lands, without first giving such other a bond with sureties, 
approved by the justice of the peace of the township, in an amount 
to be fixed as by the act provided, and conditioned for the pay- 
ment of all damages sustained by the obligee from such mining.^** 
In so far as this attempted to authorize one who had complied 
with its provisions to enter upon a tract of public mineral land 
of the United States, enclosed and cultivated to fruit trees and 
garden vegetables by the person in possession it was held to be 
unconstitutional/* 

(k) Requiring bond to secure payment for labor and mater- 
ials bestowed in improvement upon land,'''' 

Easements — access to and egress from public ways. — ^The 
right of the owner of a city lot to the use of the adjacent street 
for access to and egress from his lot is a right of property inci- 
dent to the lot itself, whether he has the fee or only an easement 
in the street/® But in a public highway in the country no abutter 
has any private easement of way as distinguished from his interest 

"Cal. Stats. 1855, p. 145. 

T«Gillan v. Hutchinson (1860), 16 Cal. 154. 

^^In Gibbs v. Tally, supra, n. 60, it was held that section 1203 of the 
Code of Civil Procedure, as enacted by Cal. Stats. 1893, p. 202, requiring 
the filing in the County Recorder's office with each building contract 
required to be filed therein, of a bond with sureties, in the amount of 
25 per cent of the contract price of the building contract, made to inure 
to the benefit of all persons performing labor or furnishing materials in 
pursuance of the building contract, providing that the persons in whose 
favor the bond is required may sue thereon without prejudice to their 
rights to liens, and making the owner and contractor jointly and severally 
liable in damages for the loss occasioned to anyone by a failure to file 
the bond, in dect required the owner to give the bond, no penalty in 
reality being visited upon the contractor for a failure to give it, he al- 
ready being liable for all labor and materials furnished, and thus placed 
an additional burden upon the owner, and prevented him from improv- 
ing his property without assuming such burden, and therein placed an 
unreasonable restraint upon him m the use thereof, and thus to some 
extent deprived him of it, and so was invalid. But in Roystone Co. v. 
Darling, supra, n. 60, it was held that the requirement of section 1183 
of the Code of Civil Procedure, as amended by Cal. Stats. 1911, p. 1313, 
section 1, of a somewhat similar bond, in the amount of 50 per cent of 
the contract price of the building contract, — imlimited recovery on liens 
claimed, irrespective of the state of accounts between the owner and 
contractor being permitted where the bond was not given, — ^was not 
open to constitutional objection. 

"Schaufele v. Doyle (1890), 86 Cal. 107, 24 Pac. 834; Eachus v. 
Los Angeles Consol. Electric Ry. Co. (1894), 103 Cal. 614, 37 Pac. 750, 



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6o CALIFORNIA LAW REVIEW 

in the common public easement. There is no covenant in favor of 
any abutter that it shall always exist, and so the road can be 
closed without making him compensation inasmuch as he has no 
private interest in it.^' 

Homesteads. — ^The first enactment in this state concerning 
homesteads was a statute passed in 1851.®® Applying this statute, 
and reversing former decisions, the Supreme Court, in the fall 
of 1859, held that notwithstanding the occupation of premises as 
a homestead, whether common property or the separate property 
of the husband, all the estate remained in the husband, a joint 
tenancy was not created, and the wife had no estate therein.'^ 

The amendatory act of i860 immediately followed.** By sec- 
tion I of this act, amendatory of section 2 of the act of 1851, and 
in force imtil superceded by the codes, it was declared that hus- 
band and wife held their homestead "as joint tenants;" and by 
section 1265 of the Civil Code, as enacted in 1872, it was declared 
they held it "in joint tenancy." By the amendment of 1873 both 
these phrases were omitted."* 

At all times the homestead law has also specifically set forth 
the devolution of the homestead upon the death of one spouse. 
By section 10 of the act of 1851, it was provided that upon the 
death of the husband, the homestead should be set apart in cer- 
tain cases by the probate court for the benefit of his surviving 
wife, children and heirs. By section 4 of the act of i860, amend- 
atory of ^aid section 10, it was provided that upon the death of 
either spouse, the homestead should be set apart by such court 
for the benefit of the survivor, if any, and in certain cases, of 
the children also. This provision was again amended in 1862 to 
provide that upon the death of either spouse the homestead "vests 
absolutely in the survivor," and so remained until the codes.** 



42 Am. St. Rep. 149; Bigelow v. Ballerino (1896), 111 Cal. 559, 44 Pac. 
307; Coats v. Atchison, Topeka & Santa Fe Ry. Co. (1905), 1 Cal. App. 
441 82 Pac 640 

'79 Levee* District No. 9 v. Fanner (1894). 101 Cal. 178, 35 Pac 569, 
23 L. R. A. 388, the court saying : "If it were otherwise no public road 
would be vacated so long as it could be shown that it was necessary for 
a single abutter, and thus the public could be required to maintain what 
is in fact a private way." 
«oCal. Stats. 1851, p. 296. 

81 Gee V. Moore (1859). 14 Cal. 472. 

82 Cal. Stats. 1860. p. 311. 
"Code Amendments, 1873-4, p. 181. 
8* Cal. Stats. 1862, p. 519. 



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INALIENABLE RIGHTS OF PROPERTY 6i 

On this point section 1265 ^^ ^^ Civil Code as enacted 1872 
declared of the homestead: 

"On the death of either of the spouses .... it descends to 

and the title at once vests in the survivor," 
and section 1474 of the Code of Civil Procedure as enacted 1872 
declared : 

"On the death of the husband or wife (it) vests abso- 
lutely in the survivor." 
Section 1265 was amended*** in 1873 to provide: 

"If the selection was made by a married person from the 
community property, the land, on the death of either of the 
spouses, vests in the survivor .... ; in other cases, upon 
the death of the person whose property was selected as a 
homestead, it shall go to their heirs or devisees, subject to 
the power of the probate court to assign the same for a lim- 
ited period to the family of the decedent." 
Section 1474 was amended in i88o®* to provide: 

"If the homestead .... was selected from the community 
property or from the separate property of the person select- 
ing or joimng in the selection of the same, it vests, on the 
death of the husband or wife, absolutely in the survivor. If 
the homestead was selected from the separate property of 
either the husband or the wife, without his or her consent, 
it vests, on the death of the person from whose property it 
was selected, in his or her heirs, subject to the power of the 
superior court to assign it for a limited period to the family 
of the decedent." 
Other more recent amendments to sections 1265 and 1474 are not 
material to the present discussion. 

It was early decided that the interest which, by the act of 
i860, the children of a marriage took in the family homestead 
upon the death of one parent, was taken by inheritance.*^ During 
the joint lives of their parents, they had no vested interest in the 
homestead.** Thus where husband and wife declared a homestead 
while the act of i860 was in effect, and the husband did not die 
imtil after the act of 1862 took effect, which made no provision 
for the children sharing in the homestead, the latter act applied; 
the homestead vested absolutely in the surviving wife, and the 
children of the marriage took nothing in the homestead.*' 

wCal. Stats. 1873, p. 181. 
wCal. Stats. 1880, p. 77. 

«TRich V. Tubbs (1871), 41 Cal. 34; Levine v. Rovegno (1886), 71 
Cal. 273, 12 Pac. 161. 

wHcrrold v. Reen (1881), 58 Cal. 443, 8 Pac. Coast L. J. 961. 
••Rich V. Tubbs, supra, n. 81; Herrold v. Reen, supra, n. 88. 



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62 CALIFORNIA LAW REVIEW 

In case of husband and wife, however, the question of vested 
rights is more complicated, and different questions arise accord- 
ingly as the homestead was declared between April 28, i860 and 
July I, 1874, when husband and wife are spoken of as joint ten- 
ants in the homestead or their interest as a joint tenancy, or 
before or after that period. 

It must be said, however, that in most of the decisions the 
Supreme Court gives only cursory consideration to these questions, 
and pays little or no attention to the changes in statutory lan- 
guage. Thus it is said generally in several cases that the law in 
force at the death of a spouse, and not that in force at the time 
of the declaration of homestead, controls the rights of the sur- 
viving spouse.*® It has also been held that the homestead act as 
amended in i860 was a statute of descent.'^ And in two cases 
where a homestead was declared while the act of 1862 was in 
force, but a spouse did not die until after the codes took effect, 
it was held that they, and not the statute of 1862, governed the 
devolution of the homestead.** 

The only two cases wherein the questions of vested rights have 
been considered at length remain to be noticed. They were de- 
cided respectively in 1877 *^d 1909. In both the declaration of 
homestead was made while the codes as enacted in 1872 were in 
effect. In the first both spouses joined in a declaration of home- 
stead on separate property of the husband, and the husband died 
August 1875; in the second the wife alone declared on separate 
property of the husband, and he died October 1885. In the for- 
mer case it was held that her rights vested immediately upon the 



»o Tyrrell v. Baldwin (1889), 78 Cal. 470, 21 Pac. 116; Gruwell v. 
Seybolt (1889), 82 Cal. 7. 22 Pac. 938; Estate of Path (1901), 132 Cal. 
609, 64 Pac. 995; Saddlemire v. Stockton Sav. & Loan Soc. (1904), 144 
Cal. 650. 79 Pac. 381. 

»iln re Headen's Estate (1877), 52 Cal. 294; Levine v. Rovegno, 
supra, n. 87; Tipton v. Martin (1886), 71 Cal. 325, 12 Pac. 244. In 
Herrold v. Reen, supra, n. 88, the court held that where husband and 
wife declared a homestead on community property August 1, 1860, and 
the husband died April 3, 1865, the application to such homestead of the 
law as amended in 1862 did not interfere with the rights of the wife. 
The court, however, put this conclusion on the following ground: "It 
(the act of 1862) enlarges her right without destroying it. It enlarges 
her right by giving her the estate absolutely, .... and it enlarged her 
right to dispose of it.* 

»2Gagliardo v. Dumont (1880), 54 Cal. 496, 5 Pac. Coast L.J. 305, 
where husband declared homestead on his separate property May 30, 
1867, and his wife died Nov. 14, 1873; Gruwell v. Seybolt, supra, n. 90. 
where wife declared homestead on husband's separate property in 1871, 
and he died July 17, 1881. 



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INALIENABLE RIGHTS OF PROPERTY 63 

declaration of homestead, that her interest acquired thereby was 
not a mere expectancy, that the code provisions did not amount to 
a statute of descent, that her interest was not affected by the code 
amendments of 1874, that it was error for the probate court (in 
conformity with the amendments of 1874) to assign the home- 
stead to her for life only, and that that court (in conformity with 
the codes as enacted 1872) should have recognized her ownership 
of the fee.®' In the latter case this decision was directly over- 
ruled on the ground that it failed to give any effect to the phrase 
of section 1265 of the Civil Code as enacted 1872 that upon the 
death of one spouse the homestead "descends to and at once rests 
in the survivor," such words in the view of the court clearly in- 
dicating that the survivor takes by descent and not by virtue of the 
original declaration of homestead. It was accordingly held that 
by her declaration of homestead the wife did not secure a vested 
right beyond the power of subsequent legislative control.'* 

The propriety of the action of a district court of appeal in 
overruling a decision of the Supreme Court under which a rule 
of property had been established for 32 years may be doubted; 
but apart from that matter, in the light of the distinctions pointed 
out by these cases, it is apparent that the decisions holding the 
homestead law of i860 a statute of descent are correct, while 
those so holding with reference to the law as amended in 1862 
are wrong, since the law as then amended says distinctly that 
husband and wife hold the homestead "as joint tenants" and that 
upon the death of either it "vests absolutely in the survivor," and 
contains not a word relating to the descent of the homestead, or 
setting it apart to the survivor by the probate court. 

Fish and game, — It is declared by the late Chief Justice Beatty 
in one case: "The people of the state being the owner of its wild 
game, it may be conceded that the state legislature could annex any 
condition it chose to the privilege of taking it.®*^ In the later case 
it was stated that "The legislature had the right to permit per- 
sons to kill or take game upon such terms and conditions as its 
wisdom might dictate, and .... the person killing game might 
have such property interest in it, and such only, as the legislature 
might confer."*' Thus that portion of section 626k of the Penal 

•»In re Headen's Estate, supra, n. 91. 
•* Hannon v. Southern Pacific R. R. Co., supra, n. 24. 
wEx parte Knapp (1899), 127 Cal. 101, 59 Pac. 315. 
»«Ex parte Kenneke (1902), 136 Cal. 527, 69 Pac. 261, 89 Am. St. 
Rep. 177. 



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64 CALIFORNIA LAW REVIEW 

Code*^ which provides: "Every person who buys, sells, offers or 
exposes for sale, barter, or trade, any quail .... is guilty of a 
misdemeanor," does not violate any right of property.'* Similarly, 
the claim that fish caught lawfully prior to the closed season be- 
come articles of merchandise and the property of the person taking 
them, and that the legislature does not have power to prohibit 
the sale of such merchandise, and cannot restrict the right to 
possess the same, cannot be sustained.** 

Waters. — ^The legislature had no power by the enactment of 
the codes to take away from landowners water rights acquired by 
them prior to the codes.^ A stream not being a public way if 
non-navigable, the mere legislative declaration that a certain non- 
navigable stream is navigable, cannot make it a public way.* The 
taking of a strip of land for highway purposes, does not authorize 
the public authorities to intercept and divert, without compensa- 
tion to lower riparian owners, the waters of a small stream that 
formerly trickled across and through such strip of land.* The 
water rights of the city of Los Angeles in certain streams, as 
against riparian owners, are those only that were possessed by the 
pueblo of Los Angeles before the American occupation, and can 
not be increased by legislative grant.* The amendment to section 
1410 of the Civil GDde,* declaring all water and the use of water 
public property, can not affect or impair water rights which had 
passed into private ownership before its enactment.* 

(to be continued) 

Charles M, Bufford, 

San Francisco, California. 



•7 Enacted by Cal. Stats. 1901, p. 820. 
•«Ex parte Kenneke, supra, n. 96. 
•» People V. Haagen (1903), 139 Cal. 115, 72 Pac. 836. 
iLux V. Haggin (1886), 69 Cal. 255, 375, 10 Pac. 674. 
2 People V. Elk River Mill & Lumber Co. (1895), 107 Cal. 221, 40 
Pac. 531. 48 Am. St. Rep. 125. 

•People V. Elk River Mill & Lumber Co., supra, n. 2. 

*Los Angeles v. Pomeroy (1899), 124 Cal. 597, 57 Pac. 585. 

•Cal. Stats. 1911, p. 821. 

•Palmer v. Railroad Commission (1914), 167 Cal. 163, 138 Pac 997. 



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California Law Review 

Pablished by the Faculty and Students ^ the School ^ Jurispnidence ^ the 
University ^ California, and issued Bi-monthly throughout the Year ^ ^ dP 

SiilMcrq>tioQ Price, $2.50 Per Year Sin^e G)pies, 50 Cents 

ORRIN K. McMURRAY, Editor-in-Chief 
MATT WAHRHAFTIG, Student Editor-in-Chief 

M. C. LYNCH, Business Manager 

S. F. ROLLINS, Student Business Manager 

ROSAMOND PARMA. Secretary 



Facility Board of Bditors 

A. M. KIDD 
WM. CAREY JONES A. P. MATTHEW 

WM. E. COLBY M. C. LYNCH 

M. E. HARRISON J. U. CALKINS, Jr. 



Student Board of Editors 

JACOB GOLDBERG, W. A. SITTON, 

Associate Editor Associate Editor 

S. M. Arndt J. C. Nichols 

R. E. HoYT O. C. Parkinson 

H. A. Jones Carol A. Rehfisch 

J. L. Knowles J. B. Whitton 
Frances H. Wilson 



CORRESPONDENCE 

New Yorkj October 5th, 1916. 
Editor of California Law Review, 
Sir:— 

I read with interest the paper of Mr. Robert L. McWilliams 
entitled "Limitations of the Theory of Corporate Entity in Cali- 
fornia," published in your issue for September 1916. In the main, 
I am in accord with the views expressed in the article, and in 
particular with the proposition that the doctrine of corporate 
entity should not be pushed too far. In a paper in the Yale Law 
Journal a few years ago, I said, in substance, that the courts should 
not permit the doctrine of corporate entity to be used as a white- 
wash for corporate wrongdoing. (24 Yale Law Journal 177). 

Mr. McWilliams states that the doctrine of disregard of the 
corporate fiction is often involved in cases of fraud. He goes 



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66 CALIFORNIA LAW REVIEW 

on to say: "Frequently cases of fraudulent conveyances made 
by a vendor to a corporation organized by him are cited as 
illustrative of this phase of the doctrine." In the foot-note to 
this sentence he refers to my paper, "Piercing the Veil of Cor- 
porate Entity." (12 Columbia Law Review, 496). Mr. McWil- 
liams then says that resort to the doctrine is not necessary in 
these cases, since the transfer is void as to creditors in any event, 
and he concludes : "There is no necessity for looking through the 
corporate veil in such a case." 

Now I never suggested, at least I never meant to suggest, 
that there was any fundamental necessity for penetrating the 
cbrporate cloak in these cases. The thought which I meant to 
convey in that part of my paper was that the courts shake aside 
the doctrine of corporate entity in these cases, and whether rightly 
or wrongly, rest their decisions on the express point that courts 
will ignore the conception of legal corporate entity when it is 
sought to be used as a shield for fraudulent or illegal acts. It may 
well be, as Mr. McWilliams says, that there is no real necessity 
for looking through the corporate veil in this particular class of 
cases. The fact remains, however, that courts do look through the 
corporate veil and that they rest their decisions upon the pre- 
cise proposition suggested in my paper, namely : "When the con- 
ception of corporate entity is employed to defraud creditors, 
to evade an existing obligation, to circumvent a statute, to achieve 
or perpetuate monopoly, or to protect knavery or crime, the courts 
will draw aside the web of entity, will regard the corporate 
company as an association of live, up-and-doing men and women 
shareholders, and will do justice between real persons." (12 
Columbia Law Review 517). 

In case after case cited in the article the ratio decidendi is the 
disregard of the corporate fiction. Whether one agrees with the 
courts in their reasoning or not, this fact must be recognized. 
(See cases cited in 12 Columbia Law Review, pp. 498-503; also my 
third edition of Clark on Corporations, pp. 10-12). 

In fine, the point is this, — that in citing the cases in my paper 
as illustrative of the doctrine of disregard of the corporate fiction, 
I was merely presenting the actual view-point of the courts. And 
that the courts take the precise point of view outlined in the paper 
cannot be doubted by any reader of their decisions. 

Mr. McWilliams also refers in his paper to the interesting 
decision of the Supreme Court of California in Higgins v. Cali- 



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CORRESPONDENCE 67 

fomia Petroleum Co., 147 Cal. 363, 81 Pac. 1070. I deemed this 
case so important as well as interesting that it was reprinted in 
Canfield & Wormser's Cases on Private Corporations, pp. 28-33. 
It is quite true as indicated by Mr. McWilliams that the lower 
court made no finding of any actual fraud in the transaction. It is 
difficult for me to reconcile this finding with the ultimate decision 
in the case disregarding the corporate entities. The Supreme Court 
indicated that the dummy corporations were formed mainly, per- 
haps solely, to evade an existing legal obligation, namely, a lease 
involving the payment of certain royalties. Such a corporate 
genesis certainly seems steeped in fraud. The Supreme Court 
rightly decided that under such circumstances it would be 
monstrous to permit the concept of the legal entity to stand as a 
stumbling block in the path of justice. 

The recent cases, in my judgment, not only in the Supreme 
Court of California but in the courts of last resort of every pro- 
gressive jurisdiction, establish the following proposition of law, — 
that a corporation will be regarded as a legal entity distinct and 
separate from its stockholders only so long as the doctrine is not 
used to defeat public convenience, justify wrong, or defend crime, 
in which case it will be regarded as a mere association of indi- 
viduals. The recent decision of the Supreme Court of the United 
States in Linn & Lane Timber Co. v. United States, 236 U. S. 
574, 35 Sup. Ct. 440, 59 L. Ed. 725, cannot be rationally explained 
upon any theory other than that of disregard of the corporate 
entity. Coming from such a high source, it is surely entitled to be 
regarded with respect. I have been much amused at the frenzied 
attempts of certain over-conservative Law Journals and Law 
Reviews hereabouts to explain away the significance of this 
decision, which unfortunately has not received the degree of at- 
tention from the bench and bar which it deserves. 

The day is rapidly passing in our law when injustice may be 
achieved under the cloak of technicality. The doctrine of cor- 
porate entity like every other legal doctrine may not be used 
to obtain an unrighteous advantage. And it follows that rational 
and progressive courts are fearlessly piercing the veil of corporate 
entity day after day where this is required in order to achieve 
justice, which, after all, is the ultimate aim of law. 
Yours very truly, 

/. Maurice Wormser, 

Of the New York Bar ; Professor of the Law of Corporations, 
Fordham University Law School. 



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G)mment on Recent Cases 



Account Stated: Nature of the Action: Necessity of 
Writing. — The opinion in Fee v. McPhee Company^ quotes with 
approval the following definition of an account stated, given in two 
earlier California cases :^ "An account stated is a document — ^a 
writing — which exhibits the state of account between parties and 
the balance owing from one to the other; and when assented to, 
either expressly or impliedly, it becomes a new contract." The 
court also cited other authority' containing definitions which do 
not include writing. The mention of writing being dictum in 
the case, the question arises, whether it is essential. 

In the first place, what is the exact nature of an account stated? 
In its simplest form, it arises as follows. Two people have had 
one or more business transactions with each other. They come 
to an agreement upon the amount of the final balance which is due 
from one to the other. This agreement is an account stated. It is 
often said to be a new and independent contract, having for its 
consideration the original items of the account.* It is also said 
to be not a contract at all, but simply prima facie proof of the 
balance due.** The latter is believed to be the better view, though 
an account stated has some of the features of a contract. 

In support of the view that it is a contract, is the fact that 
the statute of limitations begins to operate upon it from the date 
the balance is struck, as upon a new cause of action.® That is a 
statutory development, of course. Again, the California rule is 
that the items of the original account are merged and the right to 
action upon them lost.^ There is authority in other states to the 
contrary, however, which seems to be based on better reason.® The 
California rule probably arises from a confusion of accounts 
stated with compromise. A compromise is a bar to the action on 
the original items, because it is a new contract, based on new 
consideration. An account stated, properly so called, has no new 
consideration. It is prima face evidence of the correctness of an 
account, while a compromise is a conclusive agreement to accept 
a certain balance without an accounting.® A true ^account stated 

1 (Aug. 28, 1916). 23 Cal. App. Dec. 287. 

2 Coffee V. Williams (1894), 103 Cal. 550, 37 Pac. 504; Gardner v. 
Watson (1915), 170 Cal. 570, 150 Pac. 994. 

8 1 R. C. L. 207. 

*Auzerais v. Naglee (1887), 74 Cal. 60, 15 Pac 371; I^earney v. 
Bell (1911), 160 Cal. 661, 117 Pac. 925. 

5Nutt v. U. S. (1888), 23 Ct. Cf. 68 affirmed in (1888), 125 U. S. 
650. 31 L. Ed. 821. 8 Sup. Ct. Rep. 997; McKinstcr v. Hitchcock (1886), 
19 Neb. 100. 26 N. W. 705; 1 C. J. 707; 3 Harvard Law Review. 261; 
dissenting opinions in Auzerais v. Naglee, supra, n. 4. 

•Auzerais v. Naglee, supra, n. 4. 

7 National Lumber Co. v. Tejunga Valley Rock Co. (1913). 22 Cal. 
App. 726. 136 Pac. 508. 

8 2 California Law Review, 50. 
®3 Harvard Law Review, 261. 



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COMMENT ON RECENT CASES 69 

is not conclusive, and the balance found may be altered by proof 
of errors in the accounting, as was done in the case under dis- 
cussion.*® Particular items may of course be compromised prior 
to the accounting. 

If it is concluded that an action upon an account stated is in 
reality upon the balance of the original account, it follows that 
any statutory provisions which would have prevented recovery 
upon particular items will also bar recovery upon the balance to the 
extent of those items. The law is to that effect. Considered as a 
contract, an account stated is not within the statute of frauds,** yet 
it is generally held that the action will not lie if the items of 
account are within the bar of the statute.** When the items are 
barred by limitation, and a written acknowledgment signed by the 
debtor is required to remove the bar, mere agreement upon a 
balance, without such writing, will not afford a basis of action.** 

Even where writing is not required for the above reasons, it is 
usually present, as the most common basis of the action is a written 
statement sent by the creditor and assented to by the debtor 
through failure to dispute it.** Probably for these reasons, the 
words "document" and "writing" were inadvertently incorporated 
into the definition quoted above. In none of the cases adopting 
that definition was the necessity of writing involved. On the 
other hand, it is well settled that the agreement is not a "contract 
in writing,"*' nor necessarily evidenced by a writing.*® It may be 
wholly oral, even though based on items which must themselves 
be in writing.*^ Unless the definition is revised by eliminating 
the mention of writing, its further repetition may mislead some 
defendant sued upon an oral account stated into relying upon the 
dictum as a defense to the action. 

It is also to be noticed that the term "account stated" has 
come to mean the agreement itself, not the statement upon which 
such agreement was based. The latter sense, in which it is used 
in this definition, is no doubt the natural one to be derived from the 
ordinary use of the words, but to avoid ambiguity, it might be 
better to refer to the statement as the "account rendered," which, 
together with the assent to it, forms the account stated.** 

O. C. P, 

1® Supra, n. 1. 

"Converse v. Scott (1902), 137 Cal. 239, 70 Pac. 13. 

^^27 L. R. A. 811, 819. note. 

i» Visher v. Wilbur (1907), 5 Cal. App. 562, 90 Pac. 1065. 

1* Sherman v. Sherman (1692), 2 Vern. 275, 23 Eng. Rep. Repr. 
778, is the earliest reported case on account stated. 

"National Cycle Mfg. Co. v. San Diego Cycle Co. (1902), 135 Cal. 
335, 67 Pac. 280. 

*• Converse v. Scott, supra, n. 11; Baird v. Crank (1893), 98 Cal. 
293, 33 Pac. 63; Kahn v. Edwards (1888), 75 Cal. 192, 16 Pac. 779, 7 
Am. St. Rep. 141 ; 1 C. J. 682, and cases cited. 

"27L. R. A. 811, 815, note. 

"Mercantile Trust Co. v. Doe (1914), 26 Cal. App. 246, 256, 146 
Pac. 692; 3 California Law Review, 317. 



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70 CALIFORNIA LAW REVIEW 

Admiralty: Have State Courts Jurisdiction to Declare 
A Sale of a Vessel at the Instance of a Minority Owner? — 
In Fischer v. Carey^ the California court was called upon for the 
first time to decide this question. The minority owners becoming 
dissatisfied with the employment of the vessel by the majority 
owners, brought a suit in equity asking that a receiver be appointed, 
a sale of the vessel be decreed and the proceeds distributed pro- 
portionately. The Civil Code^ declares that disputes between part 
owners of a vessel may be settled by a court of competent juris- 
diction; but it was held, in the able opinion of Mr. Justice Hen- 
shaw in which the authorities are thoroughly reviewed, that a state 
court was not such a court, the federal courts having exclusive 
jurisdiction over such matters. 

The Federal Judiciary Act* declares that the federal courts 
shall have exclusive jurisdiction of all cases of admiralty and 
maritime jurisdiction, saving in all cases a right to a common 
law remedy where the common law is competent to give it. Thus 
under this saving clause the state courts have concurrent juris- 
diction in certain matters. In all partition cases there are two 
points to be determined: Are such suits cognizable in admiralty, 
and is there concurrent jurisdiction in the state courts? Admir- 
alty has always entertained jurisdiction of partition matters;* and 
as to the second point, all actions in admiralty permissible in the 
state courts must proceed in personam,* and hence it is only in 
such actions that the state courts have concurrent jurisdiction. 
An action for a sale of a vessel is in rem, being against the thing 
itself, and, therefore, not within the concurrent jurisdiction of the 
state courts.® 

The argument for state jurisdiction is based on the fact that 
while the federal courts have always afforded relief where suit was 
brought by equal part owners,^ they have uniformly refused it at 
the instance of minority owners,® the conclusion being drawn that 



i(Jul: 
2Cal. 



July 27, 1916), 52 Cal. Dec. 194, 159 Pac. 577. 
" Civ. Code, § 964. 

8 U. S. Rev. Stats., § 563, subdv. 8. 

*The Seneca (1829), Fed. Cas. 12,670; Ex parte Easton (1877). 95 
U. S. 68, 24 L. Ed. 373; Benedict, Admiralty, § 187. 

6 The Moses Taylor v. Hammons (1866). 71 U. S. 411. 18 L. Ed. 397; 
Griswold V. The Otter (1867). 12 Minn. 465; Knapp. Stout & Co. v. Mc- 
Caffrey (1900). 177 U. S. 638. 646, 648. 44 L. Ed. 921. 20 Sup. Ct. Rep. 82*; 
Benedict, Admiralty, § 187. 

•Steamboat Co. v. Chase (1872). 83 U.S. 522,533,21 L. Ed. 369 ; Aurora 
Shipping Co. v. Boyce (1911), 191 Fed. 960. A state cannot authorize a 
proceedmg in rem tor causes of action cognizable in admiralty. De Lovio 
V. Boit (1815). Fed. Cas. 3,776; Crawford v. Bark "Caroline Reed" (1871). 
42 Cal. 469; 32 Am. Dec. 68. note. 

^The Seneca, supra, n. 4; Burr v. The St. Thomas (1851). Fed. Cas. 
2,194a; The Annie H. Smith (1878). Fed. Cas. 420; Coyne v. Caplcs (1881). 
8 Fed. 638. 

8 Orleans v. Phoebus (1837). 36 U. S. 175. 9 L. Ed. 677; Tunno v. The 



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COMMENT ON RECENT CASES 71 

relief is refused from lack of jurisdiction. This view has small 
support.* 

The more logical view is that expressed in the principal case.*® 
It is not that the federal courts have no jurisdiction over partition 
suits brought by minority owners, or they would have dismissed 
them on that specific ground without deciding on the merits of the 
cases, but rather that to grant relief in such cases would be directly 
contrary to the well recognized principle in admiralty of right of 
control in the majority." Moreover, the action is necessarily 
in rem, being against the ship itself, and over such actions in ad- 
miralty the federal courts have exclusive jurisdiction. In the 
light of these principles the decision of the California court seems 
tmimpeachable. 

/. M. P. 

Boundaries: Presumption That Grantee Takes to 
Center. — The presumption is well established that a purchaser 
of land bordering on a highway takes title to the center thereof 
unless a contrary intention appears from conveyance.^ Such by 
statute is declared to be the law of California.* The contrary 
intention may be expressly declared — though there is authority 
which holds that not even this is controlling,* — or it may be 
gathered from the terms of the grant. The question then in all 
such cases is just what words of description will be held sufficient 
to rebut this presumption. 

There would seem to be two clear lines of authority on this 
subject (i) The use of the words "on" "by" or "along"* a 
highway will convey title to the center of the highway, while on 
the other hand a description of land as bounded by the "edge" 
"side" or "margin"* or "to the line"' of the highway is held to 
exclude the center of the way. (2) The second class of cases 

Betsina (1857), Fed. Gas. 14,236; The Ocean Belle (1872), Fed. Gas. 10,402; 
Hughes, Admiralty, 296. 

•Andrews v. Betts (1876), 8 Hun. (N. Y.) 322; Swain v. Knapp 
(1884), 32 Minn. 429, 21 N. W. 414; Reynolds v. Nielson (1903), 116 Wise. 
483, 93 N. W. 455, 96 Am. St. Rep. 1000. 

^^ Supra, n. 1. 

"1 R- G. L. 416; Hughes, Admiralty, 296; Supra, n. 1. 

12 Tiffany, Real Property, § 392; 2 Reeves, Real Property, § 1131, p. 
1506; 5 Gyc. 905. 

«Gal. Civ. Gode, §§ 831, 1112. 

«Peck V. Smith (1820), 1 Gonn. 103. 6 Am. Dec. 216. 

*2 Tiffany, Real Property, p. 894; White v. (Godfrey (1867), 97 Mass. 
472; 2 Reeves, Real Property, p. 1508, and authorities there cited. 

* Smith V. Slocomb (1858), 77 Mass. 280; Van Winkle v. Van Winkle 
(1906). 184 N. Y. 193, 77 N. E. 33; McKenzie v. Gleason (1904), 184 Mass. 
452. 69 N. E. 1076; 2 Reeves. Real Property, p. 1506; Walker v. Boynton 
(1876), 120 Mass. 349. 

•Hamlin v. Pairpoint M'fg. Go. (1886), 141 Mass. 51, 6 N. E. 531; 
Iron Mt Ry. Go. v. Bingham (1889), 87 Tenn. 522, 11 S. W. 705; Buck v. 
Squiers (1850), 22 Vt. 484; Severy v. Gentral Pac. R. Go. (1875), 51 Gal. 
194; Macadamizing Go. v. Williams (1886), 70 Gal. 534, 12 Pac. 530. 



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72 CALIFORNIA LAW REVIEW 

holds that not even when the side^ of the street is designated or 
the boundary is described as being to the line, is the presumption 
rebutted, these descriptions being held entirely too insignificant 
to produce a result so inconvenient and so contrary to the prac- 
tice of the people. As well expressed in an early Pennsylvania 
case,® "The paramount intention of the parties as disclosed from 
the whole scope of the conveyance and the nature of the property 
granted should be the controlling rule." Between these opposing 
views the weight of authority is about equally divided. 

In Berton v. All Persons,^ following two earlier decisions in 
California,*® it was decided that the description "to the northerly 
line of Frank Place and easterly along said line," meant that the 
grantee took only the edge of the street, and this without look- 
ing further for the intention of the parties. Thus California is in 
line with the first class of cases above, though the better reasoning 
would seem to be with the latter. 

It should take very clear circumstances to rebut a presumption 
which is so strong that even when there is no mention of the 
highway the grantee takes to the center thereof,** and which is 
based on a soimd public policy opposed to needless litigation. The 
decision of a court in such cases should not be made to depend 
upon a mere technical distinction in the use of prepositions, but 
the intention of the parties should be construed in the light of all 
the circumstances, and effect given to the presumption in every 
case possible, and this for obvious reasons. Suppose a street were 
vacated years after it was opened. The rule that the adjacent 
owners held title only to the edge of the way would necessitate 
tracing up the heirs of the original grantor, involving much expense 
and waste of time. Besides, of what value to anyone, except the 
adjacent landowners is a narrow strip of land with possibly no 
outlet? The California decisions seem to have overlooked the true 
public policy underlying the subject and to have confined attention 
entirely to the literal and grammatical construction of language. 

/. M, P. 



^ Furthermore in these cases the actual measurement of the lines 
according to the deed would only carry them to the edge of the road. John- 
son V. Anderson (1842). 18 Me. 76; Cox v. Freedley (1859). 33 Pa. St. 124. 
75 Am. Dec. 584; 13 Harvard Law Review, 150; Paul v. Carver (1856). 26 
Penn. 223, 67 Am. Dec. 413 and note; Gould v. Eastern R. Co. (1886). 142 
Mass. 85. 7 N. E. 543. 

8 Paul V. Carver, supra, n. 7; Moody v. Pahner (1875). 50 Cal. 31; 4 
R- C L 78 

»'(Aug. >. 1916). 52 Cal. Dec. 186. 

i<> Severy v. C. P. R. R. Co., supra, n. 6; Macadamizing Co. v. Williams, 
supra, n. 6. 

"Merchant v. Grant (1915), 26 Cal. App. 485, 147 Pac 484; Champlin 
v. Pendleton (1838), 13 Conn. 23; Tiflfany, Real Property, Vol. II. p. 893. 



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COMMENT ON RECENT CASES 73 

Criminal Law : Distinction Between Larceny and Em- 
bezzlement. — Is the felonious taking of money from a cash 
register by a clerk larceny or embezzlement? This question has 
not as yet been passed upon by the court of last resort in this state, 
but the District Court of Appeal, in People v. Howard,^ reversing 
the judgment of the lower court, held the taking to be embezzle- 
ment and not larceny. The taking in that case was by a clerk 
employed in a business college, whose duty was to sell stationery 
and other small articles of merchandise, depositing the money 
received in a cash register provided for that purpose. As the 
amotmt stolen was three hundred dollars, a large amount consider- 
ing the nature of the business, the only reasonable inference is that 
the money was taken from the cash register and not that it was 
misappropriated by the clerk directly upon its receipt from a 
customer. 

The fundamental distinction between larceny and embezzlement 
turns upon the question of possession. In larceny there is a tres- 
pass, and the crime involves the idea of an unlawful acquisition of 
property, while in embezzlement there is a fraudulent conversion 
of property after its possession has been lawfully acquired.* 
Larceny, in other words, is the wrongful taking of property from 
the possession of the owner, while embezzlement is the wrongful 
appropriation of another's property by a person to whom it has 
been intrusted or into whose hands possession has lawfully come.' 
Applying this definition to the principal case, the query then is — 
in whom w^s the possession of the money in the cash register 
vested? If the clerk had possession the crime was embezzlement, if 
on the other hand the master had possession, the clerk merely 
having custody, the crime was larceny. 

It may frequently be a question of great nicety to determine 
whether a clerk has possession or whether he has merely the cus- 
tody of the thing. This difficulty in pointing out where the border- 
land of custody ceases and that of possession begins was not so 
great formerly as it is to-day. At early common law the dividing 
line between custody and possession was perhaps more clearly 
maintained by certain rather definite and objective tests. It was 
apparently the general theory of our early law that when the 
master delivered to his servant a chattel to be carried elsewhere, 
the servant had possession, — ^at least when the chattel had been 
carried outside the house or clearly beyond the personal presence, 



1 (Sept. 9, 1916), 23 Cal. App. Dec. 335. 

» People V. Gallagher (1893), 100 Cal. 466, 35 Pac. 80; People v. Mon- 
tarial (mS), 120 Cal. 691, 53 Pac. 355; People v. Perini (1892). 94 Cal. 
573, 29 Pac. 1027; People v. Johnson (1891), 91 Cal. 255, 27 Pac. 663; 
People V. Belden (1869), 37 Cal. 51 ; Cal. Pen. Code. §§ 484. 503, 508, 509. 

•Wannoth v. Commonwealth (1883), 81 Ky. 133, 4 Ky. Law Report 
937; 9 R. C. L. 1266; 6 Harvard Law Review 244; 2 Bishop, New Criminal 
Law (8th ed.), § 811; 1 Bouvier Law Diet. (1897 ed.), 655; 2 Bouvier Law 
Diet (1897 ed.), 134. 



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74 CALIFORNIA LAW REVIEW 

sight or control of the master (the theory was not clear) ; whereas 
if a third person delivered a chattel to the servant for the master 
the former had possession temporarily. It is doubtful whether, in 
the time of the Year Books, the servant would or would not have 
had possession when the delivery was made in the master's shop or 
the servant had brought the chattel to the shop. But at any rate 
it early came to be the view of our law that the servant did have 
possession under such circumstances, and consequently, a "doctrine 
of ultimate destination" was developed to determine when the 
possession of the servant as bailee was transformed into a mere 
custody, the possession being transferred to the master.* 

The somewhat illogical distinctions of the old law have been 
abandoned.* Each case, or class of cases, must now, to a large 
extent, be decided by reverting to first principles. Certain valuable 
tests applicable to particular groups or classes of cases are how- 
ever available and among them remains the "doctrine of ultimate 
destination" which has been applied to the situation presented in 
the principal case by eminent text writers and by a number of 
adjudicated cases.* The doctrine is that while a thing to which 
one has become entitled, not having been his originally, is on its 
transit to him through servants, it cannot be the subject of larceny 
by a servant, until by some unequivocal act it either comes within 
the personal control of the master or otherwise reaches its ultimate 
destination.^ Now what is an "ultimate destination" within this 
rule as applied to the principal case? Ordinarily if a clerk puts 
coins or bank-notes received from a customer directly and in the 
first instance into his own pocket, or if he conceals them elsewhere 
in order to appropriate them on a subsequent occasion, he does not 
commit larceny but embezzlement.® Neither the person of the 
servant nor the hiding place is an "ultimate destination" or place 
of ultimate deposit. And as the clerk does not conunit trespass in 
either of these cases he is not guilty of larceny. Where on the 
other hand, a clerk places coins received from a customer directly 
into the cash register, and afterward with felonious intent opens 



* Commonwealth v. Ryan (1892), 155 Mass. 523, 30 N. E. 364; Pollock 
& Wright, Possession in the Common Law, pp. 59, 60, 122, 138, 162, 194, 195; 
6 Harvard Law Review, 244; Holmes on The Common Law, 226-28; 
Holmes, J., in Commonwealth v. Ryan, citing Y. B. 2 Edw. IV, 15 pi. 7; 
Fitzh. Nat. Brev. 91 E. 

' Supra, n. 4. 

•Warmoth v. Commonwealth, supra, n. 3; Snapp v. Commonwealth 
(1884), 82 Ky. 173, 6 Ky. Law Rep. 34; Commonwealth v. Ryan, supra, 
n. 4; 1 Wharton, Criminal Law (10th ed.), § 962; 2 Bishop, New Criminal 
Law (8th ed.), | 829. 

7 Supra, n. 8; Robinson's Case (1755), 2 East Crown Law (1806 ed.), 
565; Rex v. Murray (1784), 2 East Crown Law 683, 1 Leach 344; Rex v. 
Chipchase (1795), 2 East Crown Law, 567, 2 Leach 805; Regina v. Hayward 
(1844), 1 Car. and K. 518, 47 Eng. C. L. 516; People v. Bidleman (1894). 
104 Cal. 608, 38 Pac. 502; Pollock & Wright, supra, n. 4. 

« Supra n. 8 and 9; Bazele/s Case (1799), 2 East Crown Law, 571, 2 
Leach 835 ; Warmouth v. Commonwealth, supra, n. 8. 



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COMMENT ON RECENT CASES 75 

the register and takes them out, the cases unanimously hold that 
he commits larceny.® The situation presented in the case of Com- 
monwealth V. Ryan^** brings out in an exceptionally clear manner 
the distinction between place of concealment and place of ultimate 
deposit, and at the same time emphasizes the necessity of an 
unequivocal act transfering possession to the master, thereby termi- 
nating the servant's power and control over the thing. In that case 
the clerk feloniously withdrew from the money drawer of a cash 
roister money which he had placed there a moment before without 
registering the sale of the article by closing the cash drawer. The 
open drawer was, in short a sort of temporary place of conceal- 
ment. And as the clerk had not in that case, as he probably had in 
the principal case, performed the unequivocal act of closing the 
cash drawer the coins had not arrived at their ultimate destination. 
The taking in the Ryan case was therefore held to be embezzle- 
ment, and it would seem equally clear that the taking in the 
principal case should have been held to be larceny, unless section 
508 of the Penal Code can be interpreted as changing the general 
rule, by making every misappropriation by a servant embezzlement, 
which hardly seems the proper construction to place upon that 
section.^^ 

H, A. /. 

Damages: Liquidated Damages or Penalty. — The effect of 
a provision in a contract for stipulated damages being held a 
"penalty" is to limit recovery to actual damages.^ This technical 
connotation attached to the word penalty, was a result of equity's 
relief against a penalty bond, where the sum stipulated was con- 
strued as mere security for the actual damage.^ Equity proceeded 
upon the principle that the parties cannot, by express stipulation, 
agree upon more than a just compensation.* 

Whether the parties intended the sum as a bona fide pre-esti- 
mate of damages — that is, liquidated damages — or merely a security 
for a possible breach, is a question primarily of intent to be 
gathered from all the circumstances of the case.* But the express 
intent of the parties is not conclusive, and the words "penalty" or 

® Supra, n. 8, 9, and 10 ; Bazeley's Case, supra, n. 10 ; Rex v. Hammon 
(1812), 4 Taunt. 304, 2 Leach 1083, 128 Eng. Rep. Repr. 346; Walker v. 
Commonwealth (1837), 8 Leigh (Va.) 743. 

^® Supra, n. 4. 

11 Supra, n. 2. 

iDunlop Tyre Co. v. New (Parage etc. Co. (1914), L. R. (1915), A. C. 
79; Muldoon v. Lynch (1885). 66 Cal. 536. 6 Pac. 417. 

2 Benson v. Gibson (1746), 3 Atk. 395, 26 Eng. Rep. Repr. 1027; Sloman 
V. Walter (1783), 1 Brown Ch. 418, 28 Eng. Rep. Repr. 1213. 

»Myer v. Hart (1879), 40 Mich. 517, 523; 1 Sedgwick, Damages (9th 
cd.), I 407. 

*Streeter v. Rush (1864), 25 Cal. 68, 71 ; Nakagawa v. Okamota (1913). 
164 C^. 718. 130 Pac. 707; Sloman v. Walter, supra, n. 2; Sedgwick. 
Damages (9th ed.), § 406. 



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76 CALIFORNIA LAW REVIEW 

"liquidated damages" afford only prima facie evidence of intent.* 
It is obvious that if the stipulated sum is largely disproportionate 
to any reasonable idea of actual damage, it will be held to be a 
penalty.® But if the sum appears reasonable, the court applies a 
number of other tests.^ At common law, the fact that damages 
were difficult of ascertainment was good evidence that the parties 
intended liquidated damages and not a penalty.® The California 
Civil Code requires that liquidated damages may be fixed if it "be 
impracticable or extremely difficult to fix the actual damage," and 
the courts have strictly construed this provision.® If the stipulated 
sum is made payable upon the breach of any of a number of con- 
ditions of varying importance, the weight of authority is that the 
sum will be held a penalty.^^ But the modem English rule is to 
consider such a situation mere prima facie evidence of intent to 
provide a penalty.^^ In case of doubt the courts are inclined to 
hold the sum a penalty.^^ 

While probably actual damage is always considered by the 
court in construing the intent of the parties, it is unsettled whether 
actual damage needs to be proved.^* While apparently this is not 
required by the weight of authority, yet it would seem to be more 
consonant with principle to require such proof, for since the 
principle of granting damages is to award just compensation,** the 
court should be permitted to examine the particular circumstances 
accompanying the actual breach.*' 

This question was directly considered in California for the first 
time in Vath v. Hallett,^^ where liquidated damages were expressly 



^Dunlop Tyre Co. v. New Garage Co., supra, n. 1; Poque v. Kaweah 
Co. (1903), 138 Cal. 664. 72 Pac. 144. 

« Muldoon V. Lynch, supra, n. 1 ; Myer v. Hart, supra, n. 3 ; Dunlop 
Tyre Co. v. New Garage Co., supra, n. 1. 

7 Dunlop Tyre Co. v. New Garage Co., Supra, n. 1 ; 1 Sedgwick Damages, 
(9th ed.), § 406. 

8Caf. Steam Nav. Co. v. Wright (1856), 6 Cal. 258, 65 Am. Dec. 511; 
Qark v. Barnard (1882), 108 U. S. 436, 27 L. Ed. 780, 2 Sup. Ct. Rep. 87a 

•Cal. Civ. Code, §§ 1670, 1671; Pac. Factor Co. v. Adler (1891). 90 Cal. 
110. 27 Pac. 36; Potter v. Ahrens (1896), 110 Cal. 674, 43 Pac. 388; Long 
Beach etc. v. Dodge (1902), 135 Cal. 401. 67 Pac 499. 

10 Chicago Wrecking Co. v. United States (1901), 45 C. C. A. 343. 106 
Fed. 385; Camor v. Watts (1885). 115 U. S. 353. 29 L. Ed. 406. 6 Sup. Ct. 
Rep. 91; Wallis v. Smith (1882). L. R. 21 Ch. Div. 243. 

"Pye V. British Auto Syndicate (1906). L. R. (1906). 1 K. B. 425; 
Dunlop Tyre Co. v. New (Jarage Co., supra, n. 1. 

12 People V. C. P. R. R. (1888), 76 Cal. 29, 18 Pac. 90; Davies v. Penton 
(1827), 6 B. & C. 216, 108 Eng. Rep. Repr. 433. 

Inclement v. Railroad Co. (1890). 132 Pa. 445, 19 Atl. 274. 276; Kelso 
V. Reid (1892), 145 Pa. 606, 23 Atl. 323, 27 Am. St. Rep. 716; McCann v. 
City of Albany (1899), 158 N. Y. 634, 53 N. E. 673; Hathaway v. Lynn 
(1889), 75 Wise. 186, 43 N. W. 956, 6 L. R. A. 551 ; Clydebank Engineering 
Cx). V. Don Jose Ramos etc (1904), L. R. (1905) A. C. 6. 

i*Myer v. Hart, supra, n. 3; Muldoon v. Lynch, supra, n. 1. 

"Hahn V. Horstman (1876), 75 Ky. 249; Colwell v. Foulks (1868). 36 
How. Pr. (N. Y.) 306. 

i« (Aug. 25, 1916), 23 Cal. App. Dec. 283. 



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COMMENT ON RECENT CASES 77 

stipulated for in case of the breach of an agreement to buy from 
the plaintiff all liquor and supplies for a period of six years. On 
demurrer two reasons were stated for denying liquidated damages : 
first, that the same sum was fixed in the event of the breach of any 
of a number of stipulations of varying importance. This seems to 
follow the weight of authority as well as an earlier California 
case.*^ The second point was that no substantial damage had been 
shown, although no prior California decision has even suggested 
this as a prerequisite to the recovery of liquidated damages.^* The 
view of the court, however, seems to mark an advance toward the 
true principle of damages; that is, to award just compensation. 

/. B, W. 



Elections: Candidate's Right to Withdraw. — In Bordwell 
V. Williams^ it was decided that a candidate may withdraw and 
have his name left off the primary ballot after he has been regu- 
larly certified to the various county clerks and registrars as a can- 
didate for the Republican nomination for United States senator. 

There is some reason in the proposition that the party public 
have a certain interest in prohibiting a candidate from deserting 
the field after the expiration of the time allowed for qualifying as 
a candidate entitled to have his name placed on the primary ballot. 
But the principal case appears sound. A citizen is not required to 
seek election to office and in the absence of a contrary statutory 
provision the mere fact that he has announced his candidacy should 
not preclude him from withdrawing whenever he desires to do so. 
The legislature has provided that before any elector may have his 
name put on the primary ballot, he must sign an affidavit stating 
that if nominated he will accept such nomination and not with- 
draw.* This would seem to indicate that a withdrawal before nom- 
ination at the primary election was contemplated by the legislature.* 

The question of a candidate's right of withdrawal after nomi- 
nation at the primary election presents greater difficulty. Although 
there is no adjudicated case in point in California, there are two 
cases under statutes similar to our own which came to opposite 
conclusions. One theory is that the affidavit not to withdraw after 
nomination at the primary election is only to insure good faith and 
that a person would hardly be required to swear not to do a thing 
which he could not do.* The other theory is that the legislature 

IT People V. C. P. R. R., supra, n. 12; Dunlop Tyre Co. v. New Garage 
Co., supra, n. 1. 

^ There are conflicting dicta on the question. Sec Muldoon v. Lynch, 
supra, n. 1; Eva v. McMahon (1888), 77 Cal. 467, 472, 19 Pac. 872; Potter 
V. Ahrcns, supra, n. 9; Nakagawa v. Okomoto, supra, n. 4. 

1 (Aug. 18, 1916), 52 Cal. Dec. 267. 159 Pac 869. 
* Cal. Stats. 1913. p. 1389. 

•State V. Brodigan (1914), 37 Nev. 458. 142 Pac. 520. 
♦Elswick V. Ratliff (1915), 166 Ky. 149. 179 S. W. 11. 



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78 CALIFORNIA LAW REVIEW 

intended that the candidate should not be permitted to withdraw, 
for if otherwise an oath to the effect that he intended not to with- 
draw would have been provided instead of the unconditional sworn 
statement that if nominated he will not withdraw." This latter 
theory has received an extended application under a provision, — 
which is not present in our statute, — that an imopposed candidate 
for the party nomination after the time for regularly qualifying as 
such has expired, is the party nominee.* 

The latter theory appears the more reasonable. It is rather 
strained to say that the legislature would go to the extent of 
requiring a sworn statement that the candidate will not withdraw 
if nominated at the primary election for the purpose merely of 
insuring good faith. The affidavit is required to insure good faith 
and more; it is required so that a candidate will not be permitted 
to trifle with the party public by withdrawing after he has volun- 
tarily become a candidate and received a majority of the votes 
and the state has been put to the expense of a primary election. It 
would seem that the courts in such a case should not aid a person 
to do that which he has sworn that he would not do. 

F. H. M. 

Mortgage: Tender After Default. — At common law tender 
of payment by the pledgor after the day was sufficient to discharge 
the lien on the goods if the tender was refused.^ In the case of a 
mortgage after the day neither tender nor payment had any effect, 
the title by the non-performance at maturity being absolutely vested 
in the mortgagee.* 

The common law rule as to pledges still prevails practically 
everywhere that an unaccepted tender of the amount due dis- 
charges the lien,' even though made after maturity of the debt and 
not kept good.* While some states retain the common law theory 
of mortgage, the modem tendency is to consider a mortgage only a 
lien upon the property, a mere security for the primary obligation, 
the debt. 

Manifestly under the common law view that the mortgagee has 
legal title, a tender after default would not affect the mortgagee's 
rights. Under the equitable theory, however, the mortagee, though 
retaining the legal title, retains it merely as security for the debt 
owing. Some courts, which cling to that theory, hold that a tender 
of the payment of the mortgage debt after maturity will not 

estate V. Hamilton (1910), 33 Nev. 418. Ill Pac 1026. 
® State v. Brodigan, supra, n. 3. 

^Comyn's Dig. Tit. Mort. B; Coggs v. Barnard (1703), 1 Comyn's 133, 
136, 92 Eng. Rep. Repr. 999; Mitchell v. Roberts (1883), 17 Fed. 776. 

2 Currier v. Gale (1865), 9 Allen 522; Rowell v. Mitchell (1876), 68 Me. 
21; Maynard v. Hunt (1827), 5 Pick 240. 

8 Loughborough v. McNevin (1887), 74 Cal. 250. 14 Pac. 369. 5 Am. St. 
Rep. 435. 

* Mitchell V. Roberts, supra, n. 1. 



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COMMENT ON RECENT CASES 79 

operate to extinguish the title of the mortgagee or discharge the 
lien of the mortgage imless the money tendered is placed in the 
custody of the court.*^ 

A third view is taken in New York and a few other jurisdic- 
tions where the old common law mortgage has undergone a com- 
plete change ; the mortgagee has not the legal title, and the mortgage 
is nothing more than a security for the debt. In those states, the 
courts have logically follow'ed the analogy of a pledge and hold that 
a mere tender, after default, even where the money has not been 
deposited in court, is sufficient to destroy the lien.* 

For California to be logically consistent with her own interpre- 
tation of a mortgage she would have to adopt the New York rule. 
The California mortgage appears to be little more than a pledge, 
the title being in the mortgagor. But California has taken the 
view that a tender after the day does not destroy the lien.^ In 
Perre v. Castro the court said, "The debtor is as much in default 
for not paying when the debt is due as the creditor is in default 
for not receiving the money afterwards when offered. It would be 
very harsh to hold that the debt is lost — the general effect of losing 
the security — by a mere refusal at a particular moment to receive 
it" The case is a good illustration of the tendency of the courts 
to cling to the common law conception of the mortgage when a 
strict analogy to liens leads to apparently undesirable results.* 

Another example of this tendency of the courts to avoid the 
harshness of the New York rule is shown in the Washington case 
of Easton v. Littooy,^ where the decision was that "in order to dis- 
charge the lien, the proof must be clear that the refusal was palp- 
ably unreasonable, absolute, arbitrary and unaccompanied by any 
bona fide, though mistaken, claim of right." There is some 
authority for this restriction.^® 

F, H. W. 

Municipal Corporations: Special Assessment of Railroad 
Right of Way for Improvements. — Can a special assessment of 
a local improvement validly levied upon land occupied by a rail- 
road right of way be collected, or is this a situation in which there 
is a right without a remedy? -At first sight it might seem that 

5 Maxwell v. Moore (1892), 95 Ala. 166, 10 So. 444, 36 Am. St. Rep. 190. 

•Kortright V. Cady (1860), 21 N. Y. 343, 78 Am. Dec. 145; Thomas v. 
Seattle Brewing Co. (1908), 48 Wash. 560, 94 Pac. 116, 15 L. R. A. (N. S.) 
1164, 125 Am. St. Rep. 945, 15 Ann. Gas. 494. See note in 3 California Law 
Review, 336. 

7 Perre v. Castro (1860), 14 Cal. 519, 76 Am. Dec. 444; Himmehnann v. 
Fitzpatrick (1875). 50 Cal. 650. 

« Accord, Knollenburg v. Nixon (1903), 171 Mo. 445, 72 S. W. 41. 

• (Wash., June 23, 1916), 158 Pac. 531. 

i<'C:anfieId v. Conkling (1879), 41 Mich. 371; Renard v. Clink (1892), 
91 Mich. 1, 51 N. W. 692; Union Mutual Life Ins. Co. v. Union Mills Co. 
(1889), 37 Fed. 286; Cf. Williams v. Ashe (1896), 111 Cal. 180. 185. 43 
Pac. 595. 



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8o CALIFORNIA LAW REVIEW 

there would be two ways in which such an assessment might be 
collected; that is, first, by a personal judgment against the railroad, 
and, second, by sale of the land occupied by the railroad either 
subject to, or freed from, the easement of the railroad right of way. 

If the assessment could be made a personal liability of the rail- 
road there would be no difficulty in collecting it. But in Atchison, 
Topeka & Santa Fe Railway Company v. Reclamation District No, 
404,^ a case in which a special assessment was levied upon a rail- 
road right of way by a reclamation district, it was held that the 
special assessment could not be collected by "resort to a personal 
judgment to enforce payment" thereof. The foundation upon 
which the court rested this decision seems unshakable. The Cali- 
fornia code provides that delinquent reclamation district assess- 
ments are to be collected by sale of the property assessed,* and no 
other means being authorized, it follows that this is the exclusive 
method to be pursued in their collection. Furthermore, under the 
rule of Taylor v. Palmer,* any statute which attempts to make the 
landowner personally liable for a special assessment is unconstitu- 
tional. 

Is it possible to sell the land occupied by the railroad right of 
way either subject to the easement of the right of way, or freed 
from it? While it is legally possible to sell the fee of the land 
subject to the railroad's right of way,* this is not ordinarily prac- 
ticable, because the railroad is in general entitled to the exclusive 
possession of the right of way so long as it continues to use it, and 
consequently the value of the bare fee is highly speculative. On 
the other hand it was held in Southern California Railway Com- 
pany V. Workman that a fractional portion of the easement of a 
railroad used for its right of way cannot be sold under a special 
assessment unless such sale has been authorized by the legislature 
in "clear and unambiguous language."* This decision proceeds 
upon the theory that the railroad is dedicated to public service, and 
that a sale of a portion of its right of way would "greatly disturb 
the public use and interest." It is interesting to note, however, as 
to the three cases from which the California court quotes in reach- 
ing this decision, that one has been stripped of its authority by 
subsequent decisions, and that the effect of a second has since been 



MM 
2 Gal. 



July 22, 1916). 52 Gal. Dec. 111. 159 Pac. 430. 
al. Pol. Godc, § 3466. 

« (1866). 31 Gal. 241; Beaudry v. Valdez (1867), 32 Gal. 269; GaflFney v. 
Gk)ugh (1868), 36 Gal. 104; Goniff v. Hastings (1868), 36 Gal. 292; Manning 
V. Den (1891), 90 Gal. 610, 27 Pac. 435; Santa Gruz Rock Pavement Go. v. 
Bowie (1894). 104 Gal. 286. 37 Pac. 934. 

*Schaffer v. Smith (1915), 169 Gal. 764, 147 Pac. 976. 

« Southern Clalifornia Railway Go. v. Workman (1905). 146 Gal. 80. 82 
Pac. 79; Fox v. Workman (1909). 155 Gal. 201. 100 Pac. 246. See also. 
San Pedro etc. Ry. Go. v. Pillsbury (1914), 23 Gal. App. 675, 139 Pac. 669; 
Los Angeles Pacific Go. v. Hubbard (1911), 17 Gal. App. 646, 121 Pac. 306. 



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COMMENT ON RECENT CASES 8i 

nullified by legislative action.* These facts suggest that on 
principle the Workman case might possibly bear reconsideration. 
The real basis of the doctrine of the last named case is that the 
public interest is so vitally involved in the sale of a fractional por- 
tion of a railroad right of way that it must be presumed that the 
legislature did not intend general words such as "land," or 
"property," as used in the authorization of the sale/ to include 
such property as a fractional portion of a railroad right of way. 
The fact that the public interest is vitally concerned is a pre- 
requisite to the application of this doctrine. But, in reality, would 
the public interest be vitally affected by the authorization of the 
sale of a fractional portion of a railroad right of way? The- 
oretically, it might possibly have been argued prior to 191 5 that this 
question should be answered in the affirmative, but in that year 
the legislature cut the last prop from under. this argument by giving 
the Railroad Commission power to co-ordinate, in the public inter- 
est, the service of the various railroads of the state:® practically, 
this question could never have been answered in the affirmative, 
for no solvent railroad would ever allow its road to be cut in two 
to pay a validly levied special assessment. If the situation ever 
actually came to a point where it was either a question of the rail- 
road's paying the assessment, or having a portion of its right of 
way sold, the railroad would choose the former course. The 
anomaly of freeing any one — even one exercising such a high pub- 
lic trust as a railroad — from the duty of bearing his share of the 
expense of public work ought, if possible, to be avoided. 

J?. £. H. 

Persons: The Status of Convicts. — The Corpus Juris of 
Justinian imposed the loss of the status libertatis on one con- 
denmed of crime. This meant not only the loss of liberty but the 
loss of juristic personality and civil rights as well.^ So also by 
the ancient common law one guilty of treason or other felony suf- 
fered the double penalty of loss of liberty and loss of legal exist- 
ence denominated civil death.* So persistent in juristic thought 
has been this ancient conception of loss of status or capacity as 
incident to conviction for crime, that we find a ban, in many 

•Gilsonite Construction Co. v. St. Louis, I. M. & S. Ry. Co. (1912), 
240 Mo. 650, 144 S. W. 1086; Heman Construction Co. v. Wabash R. Co. 
(1907), 206 Mo. 172, 104 S. W. 67; Wisconsin, Laws of 1903. Ch. 25; 
Chicago, M. & St. P. Ry. Co. v. City of Milwaukee (1912), 148 Wis. 39. 
133 N. W. 1120. 

^Cal. Stats. 1899. p. 157; C:al. Stats. 1891, p. 196; Cal. Pol. Code, 
§ 3466. 

8 Cal. Gen. Laws, Art. 2886, § 22. 

^Sohm's Roman Law, Ledlie (1892), 122. 

M Bl. Com. 132, 133; 4 Bl. (iom. 336; Co. Litt. 199. 200, 132; Avery 
V. Everett (1888). 36 Hun. 6. 110 N. Y. 317, 18 N. E. 148. 1 L. R. A. 264, 6 
Am. St. Rep. 368. 



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82 CALIFORNIA LAW REVIEW 

respects similar to the loss of the status libertatis of the Romans 
and to the civiliter mortuus of common law, imposed upon felons 
by the law of California to-day. 

Due to the limited number of adjudicated California cases the 
status and capacity of convicts in this state is to some extent 
unsettled. The recent case of Castera v. Superior Courts has, 
however, determined the status of convicts as regards civil actions 
to which the prisoner is a party. The following three questions 
are suggested by the case: can a convict sue, can a convict be 
sued, and, finally, if he can be sued, can he defend himself? The 
court held that section 673 of the Penal Code imposing civil death 
upon convicts sentenced for life, and section 674 imposing "the 
loss of all civil rights" upon those in state's prison for less than 
life, did not prevent a convict from being sued although it did pre- 
vent the convict from bringing suit. This decision is in accord 
with the common law rule.* The final question, can a convict 
defend himself if sued, was not decided by the court. Justice and 
reason would, however, dictate that he should be allowed to defend 
a suit brought against him, and a New York court has so held in 
a decision under a statute similar to ours." 

Before attempting more completely to indicate the rights and 
disabilities of convicts, the sources of these rights and disabilities 
should be noted. An early California case held that "the dis^ 
abilities imposed by the common law upon persons attainted of 
felony are unknown to the laws of this state."* No consequences, 
therefore, follow conviction except such as are declared by the Penal 
Code, by judicial decisions thereunder and by the state constitu- 
tion. What are the rights and disabilities so declared? In general, 
to quote the language of the Supreme Court of California, it may 
be said that a convict is deprived of "all rights whose existence or 
enjoyment depends upon some provision of positive law."^ A 
specific enumeration of the rights lost includes s^ong others, 
political and contractual rights, the rights of suffrage, marriage, 
and inheritance, and finally the right to remain at liberty and 
enjoy the benefits of one's own labor.® The rights and capabilities 
retained embrace the right to the protection of one's person, the 
capability of making and acknowledging a sale or conveyance of 
property, competency as witness in a trial of a criminal action and 



3 (Feb. IS, 1916), 23 Gal. App. Dec. 61. 159 Pac. 735. 

* Guarantee Go. v. First Nat Bank (1898), 95 Va. 480, 28 S. E. 909. 

« Avery y. Everett (1888), 36 Hun. 6, 110 N. Y. 317. 18 N. E. 148; 1 
L. R. A. 264, 6 Am. St Rep. 368; Bowles v. Haberman (1884), 95 N. Y.247. 

•Matter of Estate of Nerac (1868), 35 Gal. 392, 95 Am. Dec 111. 

T Estate of Donnelly (1899). 125 C:al. 417, 58 Pac 61, 73 Am. St 
Rep. 62. 

8 Gal. Giv. Gode, § 1556 ; 2 Galif ornia Law Review, 401 ; Gal. Gonst. 
Art. II, § 1, Art. 4, § 25. See supra, n. 7; Gal. Pen. Gode, §§ 673, 674. 



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COMMENT ON RECENT CASES 83 

in conclusion the benefit of having the statute of limitations cease 
running against him while in prison.* 

Having observed the status of the criminal in Roman law, at 
common law, and finally under California law, it will perhaps be 
not inappropriate to conclude with a brief suggestion as to what 
his status ought to be in the future. The tendency of modem 
juristic thought, as found in the criminal statutes of some of our 
progressive states, is away from the harshness and barbarism of 
the Roman and common law. Civil death seems today a somewhat 
impracticable and doubtful penalty. It is hard to apply and often 
inflicts a greater injury upon the innocent family or relatives of 
the felon or even upon the state itself, in tying up his property, 
than it does upon the convict. And finally, it is not in accord with 
the modem notion that imprisonment of the felon is rather a means 
for protecting society, than a punishment imposed upon the indi- 
vidual. A statute similar to that in New York or Kansas, provid- 
ing for the appointment of a trustee to administer the felon's affairs 
would as a practical matter accomplish all that is desired, and at 
the same time might well meet with the approval of many who 
would be imwilling to see the rules relating to civil death com- 
pletely abrogated.^® 

//. A. J. 

Vendor and Purchaser: Nature and Waiver of Vendor's 
Lien. — In Braun v. Kahn^ the vendor sued on a note given for the 
balance of the purchase price of real estate and obtained a money 
judgment. He caused an issuance and levy of execution thereon. 
Later he abandoned his execution lien and commenced an action 
on the judgment recovered on the note. In this action he claimed 
a vendor's lien and asked to have the property sold to satisfy this 
lien. The court, overruling dicta in early California cases,* allowed 
the recovery. The defendant appealed alleging that the plaintiff 
had waived his vendor's lien by bringing a personal action and 
obtaining a personal judgment on the note followed by execution 
thereon. The lien of an unpaid seller of real estate, although sug- 
gested by the Roman law covering the sale of personal property, 
is a creation of the English Courts of Chancery.* Many states, 
including California, following the English cases, hold that the 
lien exists irrespective of express reservation.* "Upon principle," 

•Gal. Pen. Code, §§ 676, 675; Gal. Code Civ. Proc, § 328. 

10 New V. Smith (1906), 73 Kan. 174, 84 Pac. 1030; Kansas Gen. Stat 
1901, §§ 2301, 5776, 5780, 5781; Bowles v. Haberman (1884), 95 N. Y. 247; 
2 Revised Statutes of N. Y., § 15; N. Y. Pen. Code, § 707. 

1 (Aug. 18, 1916), 23 Gal. App. Dec. 263. 

apitzcll V. Leaky (1887), 72 Gal. 477, 14 Pac. 198; Longmaid v. Coulter 
(1898), 123 Gal. 208. 55 Pac 791. 

»Mackreth v. Symmons (1808), 15 Ves. 329, 33 Eng. Rep. Repr. 77a 
See also 2 Story, Equity. (13th ed.). p. 563. 

<2 Jones on Liens (2nd ed.). § 1063. 



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84 CALIFORNIA LAW REVIEW 

says Lord Eldon, "it goes on this, that a person having gotten the 
estate of another shall not as between them keep it and not pay the 
consideration."* The question as to what constitutes a waiver of 
the lien of the vendor of real estate has been the subject of much 
controversy. The courts are generally agreed that before a person 
can be said to have waived such a lien, he must have done some- 
thing inconsistent with the exercise of said lien and evincing an 
intention to waive it.* The difficulty arises when we attempt to dis- 
cover what constitutes an act inconsistent with the exercise of the 
lien which amounts to a waiver of it. . The better cases agree that 
the bringing of a suit and obtaining of a judgment thereon do not 
of themselves constitute a waiver.^ Suppose, as in the principal 
case, that the plaintiff goes one step further and levies execution. 
Does this amount to a waiver of the lien? The appellant's conten- 
tion was that the vendor, having secured an execution lien on the 
property in question, had an interest inconsistent with the equitable 
lien. This apparently sound argument falls when we consider that 
the execution lien holder is not a bona fide purchaser who takes 
free from the lien of the vendor. The very nature of the lien in 
question is based on the theory that a person cannot keep the estate 
of another until he has paid the full purchase price. So, until the 
total price has been paid, or the property has been taken from the 
vendee by an execution sale or a sale has been made by the vendee 
to a bona fide purchaser, the reason for the lien is still present and 
the lien should continue to exist. Many cases hold that a sale of 
the property under execution amounts to a waiver of the lien irre- 
spective of the amount realized thereon.® Where, however, there 
has been no sale of the property the prevailing rule is that the mere 
levying of an execution thereon does not amount to a waiver of 
the lien.* The decision of the court is sound in principle and is 
well supported by leading decisions in other jurisdictions. 

5. F, H. 



«Mackreth v. Symmons (1808), 15 Ves. 329, 344, 33 Eng. Rep. Repr. 
778, 783. 

«Selna v. Selna (1899), 125 Cal. 357, 58 Pac. 16; 2 Jones on Liens 
(2nd ed.), § 1073. 

7 Graves v. Coutant (1879), 31 N. J. Eq. 763; Elswick v. Matncy (1909), 
132 Ky. 294, 116 S. W. 718. 

sYctter v. Fitts (1887), 113 Ind. 34, 14 N. E. 707; Borror v. Carrier 
(1905). 34 Ind. App. 353. See also notes in 50 L. R. A. 714. and 13 Ann. 
Cas. 92. 

» Supra, n. 7. 



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Book Reviews 



The Law of Promoters. My Manfred W. Ehrich. Matthew 
Bender & Co., 511-513 Broadway, New York. 1916. pp. xix, 645. 

This work is an exhaustive collection and review of the leading 
decisions of the courts of the various jurisdictions of the United 
States and England upon the legal principles regulating the rights 
and liabilities of promoters. The author has accomplished his pur- 
pose of supplying the busy lawyer with a good reference book on 
this portion of the law of corporations. This publication is one of 
the necessary results of the rapidly accumulating mass of case law, 
which forces a writer to devote a whole book to what was previ- 
ously covered in one or two chapters of a general treatise on com- 
pany law. Although of great value as a review of the case law 
down to the present day, the author could have added to the full- 
ness of his accomplishment by placing more emphasis upon the 
general principles of law and equity upon which the courts pro- 
ceeded in reaching their conclusions. 

Af. C. L. 



California Law of Corporations. By Fabius M. Clarke. 
Bender-Moss Company, 11 City Hall Ave., San Francisco, Cal. 
1916. pp. Ixxv, 916. $7.50 net. 

The law of corporations, depending as it does on local statutes 
and decisions, is a subject tihat demands with peculiar force a text 
book dealing with local applications of that law. The above volume 
endeavors to answer such a demand. The author attempts no 
more than to give "California law, pure and simple." The work is 
necessarily, therefore, not a complete study of the law of corpora- 
tions, and can fairly be tested only by the extent to which it serves 
the needs of the bench and bar of this state. 

No one, except perhaps a reviewer, reads through local text 
books, which are merely handbooks to be examined as need arises. 
They should be, therefore, aptly arranged and clearly indexed, — in 
a word, thoroughly sign-posted. Mr. Clarke's volume does not 
perfectly fulfill these requirements. The arrangement seems rather 
haphazard, which would not be a great matter, if the index led 
one easily to the place where any given point were discussed. The 
index does not do so, however, for it consists in vague general 
headings under which the subheadings referring to the text are not 
arranged or classified according to any discoverable scheme. For 
example, to find any given point under the general heading "Direc- 
tors," the hurried practitioner or judge must look over four pages 
of catch phrases. In another and similar aspect the book suflFers. 
The author frequently indicates a question that arises incidentally. 



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86 CALIFORNIA LAW REVIEW 

remarking that it will be discussed more fully elsewhere. But 
where? There are very few cross references. The practitioner is 
driven to the imperfect index. 

The author purports to include all cases bearing upon his sub- 
ject up to and including 170 Cal., 28 Cal. App., and 7 Cal. Unre- 
ported. This is, of course, highly desirable, for often a case of 
seeming unimportance is a straw to a drowning man. So far as 
the reviewer can judge, the author has generally kept his promise. 

The learned author is aware that the law is a growing science 
that gains by the white light of criticism. Not content to state the 
result of code or decisions, he discusses their logicality and suffici- 
ency to serve business or other needs. Some may object to such 
comment, but the majority will often find in such criticisms much 
that is clarifying, and in addition those who are interested in the 
development of the law will also discover food for thought. In 
particular may be cited the criticism of the familiar doctrines relat- 
ing to stockholders' liability on page 363. 

A. T. W. 



Books Received 



The Land-Title Registration Act of the State of New 
York. By Dorr Viele and Joseph C. Baecher. Matthew Bender 
& Co., 109 State Street, Albany, New York. 1916. pp. 87. $.50. 

Trust Laws and Unfair Competition. By Joseph E. Davies, 
Commissioner of Corporations. Government Printing Office, 
Washington. 1916. pp. xi, 832. $.40. 

Eighth and Ninth Annual Report of the Municipal 
Court of Chicago. By the Municipal Court of Chicago. Dec. 
191 3 to Dec. 1915. pp. 163. 

Magna Carta and Other Addresses. By William D. Guthrie. 
Columbia University Press, Lemcke & Buechner, agents, 30-32 
West 27th Street, New York City. 1916. pp. x, 282. $1.50 net. 

Law of Domestic Relations. By Edward W. Spencer. The 
Banks Law Publishing Co., 23 Park Place, New York City. 1916. 
pp. Ixiv, 777. $6.00. 

The Law of Interstate Commerce and its Federal Regu- 
lation. By Frederick N. Judson. 3rd Edition. T. H. Flood & 
Co., 214 W. Madison Street, Chicago, 111. 1916. pp. vii, 1066. 
$7.50- 



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California Law Review 



Volume V JANUARY. 1917 Number 2 

Field^s Work as Lawyer and Judge in 

California 

THE hundredth anniversary of the birth of Stephen J. Field 
is a fitting occasion to say a few words concerning a man 
who contributed perhaps more than any other individual 
to the creation of the legal system of California. It is not 
proposed to deal in detail with the events of Justice Field's life. 
That has been excellently done elsewhere.^ Nor will the attempt 
be made to offer a complete estimate of Justice Field's con- 
tributions to the jurisprudence of state and nation.^ It may 
be useful, however, to say something of his work at the bar 
and on the bench of California, if it serve only to fix attention upon 
the fact that though our law is ultimately a result of economic and 
social force, commanding personalities have none the less been the 
means through which those forces have acted. 

I. 

It is a singular and characteristic fact that while Field's per- 
sonal opinions never obtrude themselves in his decisions, while he 
never permits an impatient word to escape him, as did his rugged 
contemporary, Harlan, while he never makes a judicial pronounce- 
ment the occasion for giving utterance to a philosophical theory as 
does his brilliant successor, Mr. Justice Holmes, while his judicial 

* Sec the very interesting sketch by Professor John Norton Pomeroy, 
Jr., of the University of Illinois, in Great American Lawyers, vol. VII, pp. 
3-51; also the Introductory Sketch (1881), reprinted in 1895, in the Legis- 
lative and Judicial work of Justice Field Field's own "Personal Reminis- 
cences of Early Days in California, with other Sketches," 1877; 2d Ed., 1893 
(privately printed) should be made more generally accessible. 

* Professor Jones publishes in another part of this Review an article 
on "Justice Field's Opinions on Constitutional Law" which undertakes a 
critical discussion of this important phase of Field's work. A less com- 
plete treatment by Horace Stem, of Philadelphia, may be found in Great 
American Lawyers, vol. VII, pp. 52-85, entitled "An Examination of 
Justice Field's Work in Constitutional Law." 



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88 CALIFORNIA LAW REVIEW 

theory seems to have been that the man should merge himself in 
the judge, a fairly complete life of Field could be written from the 
law reports, if all other sources of information should fail. By 
some strange freak of fortime the most dramatic events in Field's 
career found their way into the sheep boimd volumes where one 
rarely looks for such things. At the beginning of his life in Cali- 
fornia we find a considerable portion of the first volume of reports 
of the new State occupied with an account of his conflict with 
Judge Turner, his punishment for contempt, his arbitrary disbar- 
ment, and his ultimate victory by a series of extraordinary writs.* 
When his judicial career was not far from its close, the one 
himdred and thirty fifth volume of the United States Supreme 
Court reports contains the story of the assault on Field by Terry and 
the killing of the latter by Deputy Marshal Neagle.* Earlier volumes 
of the same reports and of the Federal Reporter give the story of 
the remarkable scene in the Circuit Court of the United States in 
which the Terry's defied the court and insulted its judges — the pre- 
lude to the case of In re Neagle.* And one who was seeking 
merely the materials for the external facts of the man's life would 
find in the reports the account of other less dramatic incidents in 
connection with his romantic career. For example, the fact that 
he was compelled to make an assignment of his property for the 
benefit of his creditors, which he tells us in his "Reminiscences" 
was the penalty for his neglect of his private affairs while he was 
a member of the Legislature, is duly set forth in the case of Ben- 
ham V. Rowe.^ 

The reports embracing Field's judicial work give us a much 
better picture of the man than could be gleaned merely from a nar- 
rative of the events of his life, however full. They would not 
indeed tell us that he was bom in Haddam, Connecticut, on Novem- 
ber 4, 1816, of revolutionary stock; that he was one of four 
brothers, David Dudley, Cyrus W. and Henry M. Field, each of 
whom in his own way achieved great things ; that he was educated 

» People ex rel. Mulford v. Turner (1850), 1 Cal. 144; People ex rel. 
Field V. Turner (1850), 1 Cal. 152; Ex parte Stephen T. Field (1850), 1 
Cal. 187; People ex rel. Field v. Turner (1850), 1 Cal. 188; People ex rel. 
Field V. Turner (1850), 1 Cal. 190. 

*Ex parte Neagle (1890), 135 U. S. 1, 34 L. Ed. 55. 10 Sup. Ct Rep. 
658. 

«In re Terry (1888), 36 Fed. 419; Sharon v. Hill (1885). 24 Fed. 
726; Ex parte Terry (1888), 128 U. S. 289, 32 L. Ed. 405. 9 Sup. Ct Rep. 77 1 
Sharon v. Terry (1888). 36 Fed. 337. 

»Benham v. Rowe (1852). 2 Cal. 387. 



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FIELP AS LAWYER AND JUDGE 89 

in part in the Orient and was familiar to some extent with modem 
Greek and Oriental languages ; that he had it in mind to train him- 
self to become a professor of Greek ; that he graduated at Williams 
College at the head of his class; that he travelled in Europe, was 
admitted to the New York bar, and practiced in the office of his 
distinguished brother, David Dudley Field, in New York City, 
from 1841 to 1848, while the latter was in the midst of his fight 
for codification. But the essential things that resulted from this 
heredity and this rather unique training are visible in the opinions 
which constitute his life work. The logical mind, the conscientious- 
ness in detail, the tenacity of opinion, the reserve in mode of 
expression, the solidity and massiveness of character, visible in 
Justice Field's written opinions, betray the Puritan origin; the 
breadth of view, the openness to new ideas, the ability to adapt 
himself to a strange and rough environment, are the results of the 
training. 

II. 

Field's superior mind and training are apparent from the outset 
of his career in this State. His contest with Judge Turner has 
already been mentioned. It is in connection with the various writs 
brought to set aside his commitment for contempt and his disbar- 
ment by that judge that Field's name first appears in the reports. 
He won a complete triumph, and it may be well believed that the 
courage, energy and ability displayed in this contest made Field a 
striking figure in the eye of the bar and of the public. From the 
date of his first appearance in propria persona in People ex rel. 
Mulford V. Turner, until his resignation to take the office of an 
Associate Justice of the Supreme Court of the United States, 
Field's name appears as coimsel or judge several times in every 
volume of the California reports. His career as coimsel seems to 
have been very successful. In sixty-nine appeals in which his name 
appears as a coimsel, he was on the victorious side fifty-two times.^ 

It may be of some interest to follow Field's work as a counsel. 



^His arguments as counsel are to be found in vols. 1 to 10, inclusive 
of the California Reports; his work as judge in vols. 8 to 21, inclusive. 
During the period of his work on the bendh of California — from September, 
1S57, to May, 1863, he wrote three hundred and fifty opinions (including a 
few dissents). He was absent from the State with the consent of the 
legislature during a portion of the April term, during the entire July 
term, and during a portion of the October term, 1859. He became Chief 
Justice, September 12, 1859, upon Terry's resignation. 



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90 CALIFORNIA LAW REVIEW 

especially in view of the fact that so far as we are aware it has not 
been done by his biographers in detail, and because it serves in 
some degree to illustrate the eternal "paradox of form and sub- 
stance in the development of law."® In theory the development of 
the law is through the application of the rules of formal logic to 
facts and established principles fotmd in legislation or judicial 
precedents. In reality it is the result of human forces of which the 
personalities of the judges are not the least important Lord Mans- 
field, the associate of the wits and the great merchants, approached 
the law from a point of view quite different from that of his suc- 
cessor, Lord Kenyon, who cared nothing for literature or a broad 
culture, and whose views on trade were those of the landed classes 
of the eighteenth century. Surely if the law "has to do not with a 
mere intellectual craft, but with a vital aspect of human and 
national history,"* the personalities of those who make it cannot be 
neglected. And in studying the personality of a great judge, what 
he did and thought as a practicing lawyer is bound to shed light 
upon his subsequent life and opinions. 

In Field's case, echoes from his work at the bar can frequently 
be heard in his utterances as a judge. Thus, is it unfair to say that 
his experience of judicial arbitrariness in his adventures with Judge 
Turner had much to do with his theories as to the relations of 
bench and bar, as to the nature and functions of the judicial power, 
as to the fundamental question of the position, duties and rights of 
counsel. In Ex parte Garland,*^® Field delivering the opinion of the 
court says: 

"The profession of an attorney and counsellor is not like 
an office created by an Act of Congress which depends for its 
continuance, its powers and its emoluments upon the will of its 
creator, and the possession of which may be burdened with any 
conditions not prohibited by the Constitution. .... The order 
of admission is the judgment of the court that the parties 
possess the requisite qualifications as attorneys and counsellors, 
and are entitled to appear as such and conduct causes therein, 
.... The attorney and coimsellor being, by the solemn 
judicial act of the CTourt, clothed with his office, does not hold 
it as a matter of grace and favor. The right which it confers 
upon him to appear for suitors and to argue causes is some- 
thing more thsui a mere indulgence, revocable at the pleasure 
of the Court, or at the command of the legislature. It is a 

* Homes, Common Law, p. 35. 

• Pollock, The Genius of the Common Law, p. 1. 

10 (1866), 71 U. S. (4 Wall.) 333, 379. 18 L. Ed. 366. 



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FIELD AS LAWYER AND JUDGE 91 

right of which he can only be deprived by the judgment of 
the court for moral or professional delinquency." 
Of the three authorities cited by Justice Field to support this 
doctrine, one, Fletcher v. Daingerfield^^ was decided by himself, 
upon the authority of People v. Turner.*^ 

Contrast with Justice Field's theory of the nature of the attor- 
ney's office that of Justice Miller, expressed in the dissenting 
opinion in the Garland case and concurred in by Chief Justice 
Chase and by Justices Swayne and Davis. 

"The right to practice law in the courts as a profession 
is a privilege granted by the law, under such limitations or 
conditions in each state or government as the law making power 
may prescribe. It is a privilege and not an absolute right. 
.... No reason is perceived why this body of men, in their 
important relations to the courts of the nation, are not subject 
to the action of Congress, to the same extent that they are 
imder legislative control in the States or in any other govern- 
ment; and to the same extent that the judges, clerks, marshals, 
and other officers of the court are subject to congressional 
action."" 

In Ex parte Wall,^* Justice Field's strong feelings upon the 
subject of the necessity for the protection of the independence of 
the bar led him to dissent from the opinion arrived at by all of the 
other justices, sustaining an order striking the name of the peti- 
tioner from the roll of attorneys. Though notice had been given 
the disbarred attorney, the order had been made without any affi- 
davit making a charge against him. It clearly appeared however, 
that he had been guilty of a most flagrant contempt of court and a 
violation of his oath as an attorney by advising and aiding in the 
lynching of a prisoner. Field, in his dissenting opinion, said: 

"What then are the relations between attorneys and coun- 
sellors at law and the courts; and what is the power which 
the latter possess over them; and under what circumstances 
can they be disbarred? There is much vagueness of thought 
on this subject in discussions of cotmsel and in opinions of 
courts. Doctrines are sometimes advanced upholding the 
most arbitrary power in the courts, utterly inconsistent with 

any manly independence of the bar The power to 

disbar attorneys in proper cases .... is not to be exercised 
arbitrarily or tyrannically. Under our institutions arbitrary 

" (1862), 20 Cal. 427. 

" (1850), 1 Cal. 143. 

"At p. 384 and 385. 

1* (1882). 107 U. S. 265, 27 L. Ed. 552, 2 Sup. Ct. Rep. 569. 



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92 CALIFORNIA LAW REVIEW 

power over another's lawful pursuits is not vested in any man 
nor in any tribunal. It is odious wherever exhibited, and 
nowhere does it appear more so than when exercised by a 
judicial officer toward a member of the bar practising before 
him."" 

If Field had a high opinion as to the dignity and independence 
of counsel, he had an equally high one with respect to the dignity 
and independence of the court. Delivering the opinion of the 
court in Bradley v. Fisher,^® he laid down the doctrine, against the 
dissent of Justices Davis and Clifford, that judges of superior 
courts are exempt from liability to civil action for any acts done 
in their capacity as judges, though such acts are in excess of their 
jurisdiction and are done maliciously and corruptly. The only 
remedy for such abuses lies in the impeachment of the corrupt 
judge. The natural temper of Field's mind, his intuitional sense 
of the necessity for the independence of courts in order that justice 
may be effectively administered, predisposed him toward the doc- 
trine of the immunity of judges. Upon that side of the question, 
his views represent the prevailing doctrine; upon the other side, 
the question of the independence of counsel, the views expressed 
by him in the Wall case are by no means those which have gen- 
erally commanded the opinion of the courts.^' 

Is it unworthy of the respect which lawyers and laymen alike 
should entertain for the law and the courts to suggest that a judge's 
opinions are in part an expression of himself; that one of the ele- 
ments of Field's strength as a jurist lay in the fact that he made 
life into law ; that he would never have been so great a judge had 



"At p. 302. 

i« (1871), 80 U. S. (13 Wall.) 335, 20 L. Ed. 646. Cf. Ex parte Bradley 
(1868), 74 U. S. (7 Wall.) 364, 19 L. Ed. 214. 

^^ It is of interest to note that Justice Davis in the C^arland case con- 
curred with Justice Miller's theory that there is no right to practice law, 
but merely a privilege, while in Bradley y. Fisher he dissented from 
the view that judges were immune from civil action for malicious and 
corrupt acts done by them in excess of their jurisdiction. His theory, 
therefore, of the relation of court and council is sharply contrasted wiUi 
that of Field. On one side, he recognizes an inherent and vaguely defined 
power on the part of the court over the conduct of counsel, on the other 
hand he views this inherent power as one that must be exercised with 
caution, for the arbitrary judge becomes merely a private citizen when he 
exceeds his jurisdiction and acts with malice. It would be an interesting 
study to work out the different types of individualism represented by the 
Field and by the Davis theory. In addition to the Crarland case the Wall 
case, and Fletcher v. Daingerfield above dted, see Ex parte Robinson (1873) 
86 U. S. (19 Wall.) 505; 22 L. Ed. 505; In re Green (1891), 141 U. S. 325, 
35 L. Ed. 765, 12 Sup. Ct. Rep. 11. 



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FIELD AS LAWYER AND JUDGE 93 

he not been a man with a mind sensitive to experience? The 
solidity of Field's judicial character, his love of logic and order, his 
admiration for the system of the common law, made it impossible 
that he should be the slave of prejudice. The grand manner was 
his; the judicial style that rarely erred by overemphasis, by impa- 
tience, by smartness, by inattention to detail. But he was no logical 
machine. Had his ideas not been profoundly influenced by the arbi- 
trary and violent conduct of Judge Turner of which he was the 
innocent victim, had this experience not served to increase his 
hatred of tyranny and oppression in every form, we may well be 
permitted to express a doubt whether in spite of his learning and 
industry he would have achieved his great work in the history of 
American law. 

III. 

Another case argued by Field before the Supreme Court which 
had something to do with his later views is that of Hicks v. Bell.^® 
In that case the Supreme Court held that "the mines of gold and 
silver on the public lands are as much the property of this State 
by virtue of her sovereignty as are similar mines in the lands of 
private citizens," and that "the several States of the Union, in 
virtue of their respective sovereignties, are entitled to the jura 
regalia which pertained to the King at common law." This theory 
was not suggested by counsel on either side, and its author. Judge 
Heydenfeldt seems to have relied upon authorities from Pennsyl- 
vania and New York, where, of course, there had never been public 
lands of the United States.^* In Biddle Boggs v. Merced Mining 
Company at the January term of the court in 1858, Burnett, J., 
delivered an opinion with which Terry, C. J., concurred specially 
and from which Field, J., dissented. While Justice Burnett criti- 
cized the case of Hicks v. Bell, he thought the precious minerals 
continued to belong to the United States, notwithstanding a patent 
had issued, by reason of its proprietorship in the gold and silver, 
though not by virtue of its sovereignty. Terry, C. J., declined to 
express an opinion as to Hicks v. Bell, but found that he could 
concur with his associate on the ground that, whether the title 
was in the State or in the United States, plaintiff could not claim 
the gold found within the limits of the United States patent. 
Field's dissenting opinion is not reported. A rehearing was 

" (1853). 3 Cal. 219. 

^* Lindley, Mines and Mining, § 21. 



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94 CALIFORNIA LAW REVIEW 

granted in the case, and a change in the court having been made by 
the retirement of Terry and Burnett and the selection of Baldwin 
and Cope, the former decision was reversed at the October term, 
1859. Field's opinion determines the question, however, without 
reference to the decision in Hicks v. Bell. He assigned as a reason 
for not discussing it the fact that Justice Baldwin had been counsel 
for the respondent, and that the court desired to have a question 
of such importance decided by a full court.^*^ 

The occasion to discuss Hicks v. Bell soon came in Moore v. 
Smaw.'^ Field's opinion in that case places the law upon this 
important matter where it has ever since remained. Speaking of 
Hicks v. Bell, he says: 

"That decision has not met the approbation of the profes- 
sion or retained the approbation of the distinguished Judge** 
who delivered it. The question as to the ownership of the 
minerals was not raised by counsel, and its determination was 
not required for the disposition of the case." 

He proceeds to show the court's fallacy in supposing that the 
states of the American Union had succeeded to any except the 
political rights and authority of the British Crown, and in confus- 
ing the King's personal prerogative with his political powers. He 
argues very forcibly that the English rule itself "had in truth its 
origin in an arbitrary exercise of power by the King, which was 
at the time justified on the ground that the mines were required as 
a source of revenue." 

Possibly Hicks v. Bell might have been overruled if Field had 
never been counsel in the case, for to our present day view it was 
hopelessly wrong. But in our mental appraisement, the fact must 
not be forgotten that it represents a lost cause, and though a 
Matthew Arnold may rejoice that Oxford is the home of lost 
causes, the work-a-day world has little to say in their favor. It 
was a singular fate, however, that Hicks v. Bell should have been 
repudiated by the mind that gave it birth, and that its ultimate 



20 (January Term 1858 and Oct. Term 1859), 14 Gal. 279. 

21 (1861), 17 Gal. 199. 

22 Heydenfeldt, who as counsel in the Biddle Boggs case, had been con- 
fronted by the Frankenstein he had created in Hicks v. Bell. Justice Baldwin, 
writing in the Sacramento Union of March 6, 1863, points out some of the 
mischief to which the decision in Hicks v. Bell had led. Miners claimed 
the right to go upon private land to discover the gold which the State 
reserved, a claim naturally resisted by the owners of the lands. The 
decision in Moore v. Smaw put an end to this condition. 



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FIELD AS LAWYER AND JUDGE 95 

fate should be decided by a court of three judges, two of whom, 
Field, and Baldwin, must have had about as little sympathy with 
its doctrine as any lawyers in California. 

IV. 

In his Introductory Sketch, previously referred to, the late 
Professor John Norton Pomeroy says of Justice Field's decisions 
settling the foundations of the law of mortgage in California:** 

"His opinions explaining, advocating and enforcing this 
single equitable conception of the mortgage as purely a 
hypothecation, as creating no estate in the land, as a mere 
lien and not a jus ad rem nor a jus in re, have not been 
excelled in their clearness of statement and cogency of argu- 
ment by those of any other court which has maintained the 
same view, and they have undoubtedly done much to promote 
its acceptance in other states. No opinions upon the subject 
are more instructive for the student in all parts of the 
country." 

How much of Justice Field's doctrine upon the subject of the 
nature of the mortgage is the result of his work as an advocate? 
Of course, neither quantitatively nor qualitatively can we assay his 
judicial work in this respect with any degree of accuracy. But it 
is a matter of some interest to observe that the propositions argued 
by him as counsel even unsuccessfully are frequently adhered to by 
him with tenacity through the course of his long judicial career. 
Maitland's now trite saying that "taught law is tough law" may 
well be applied to Field's case. The law that he sought to teach 
the courts is, indeed, "tough." 

Let us look at a typical instance. In Lee v. Evans*^ and in 
Low V. Henry,*' he argued what is long since elementary doctrine, 
that a deed though absolute on its face is but a mortgage if 
intended as security. In the first of these cases, Lee v. Evans, 
Field did not advance the proposition dogmatically. He says in 
the course of his argument : "But whether parol evidence is admiss- 
ible in the absence of any of these circumstances (of fraud, acci- 
dent or mistake), there is some conflict in the authorities, although 
the weight of the authorities, is, I think, in favor of its admiss- 
ibility," and he proceeds to cite the cases. The court held against 
his contention, though he won the appeal upon a point of pleading. 



»«At p. 38. 
**(1857), 8 Gal. 424. 
«• (1858), 9 Cal. 538. 



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96 CALIFORNIA LAW REVIEW 

By a psychological process familiar to all advocates, that which 
was advanced with hesitation in Lee v. Evans is urged with confi- 
dence a year later in Low v. Henry, but the point meets the same 
fate. 

On the first occasion when the question arose before the court 
of which Field was a member, he wrote a dissenting opinion in the 
case of Johnson v. Sherman, not reported.*^ In Pierce v. Robin- 
son,*^ however, the personnel of the court having changed, the 
question is reconsidered, Lee v. Evans and Low v. Henry over- 
ruled upon this point, and to use Field's language — somewhat 
significant in view of the rather hesitating manner in which he 
spoke in Lee v. Evans only two years before — "the doctrine of this 
court (placed) in harmony with the received doctrine of courts 
of equity on this subject everywhere else." The "weight of authori- 
ties" of 1857 has in 1859 become the "received doctrine .... 
everywhere." Many years later in Peugh v. Davis," the decision, 
and in part the language, of Pierce v. Robinson is reiterated in the 
Supreme Court of the United States. 

Other cases argued by Field before the Supreme Court show 
that much of his work of laying the foundation of the law of 
mortgage in California was done before he ever reached the bench. 
Indeed, the first case in the California reports which discusses the 
theory of the mortgage was one in which Field was not only coun- 
sel but was also one of the plaintiffs.** The case arose out of a 
sale under a power in a mortgage given by Field, and was an 
action brought by the latter and the trustees to whom in December, 
i 1850, he had made the assignment for the benefit of his creditors 

^ previously mentioned, to set aside sales made by the mortgages 

under the power to themselves. It is interesting to note that the 
language attributed to Field in the argument to the effect that "The 
equity of redemption is inseparable from a mortgage and cannot 
be disconnected even by agreement of the parties,"*® is almost pre- 
cisely the language used by him twenty-five years later in deliver- 



2« Referred to in Arguello v. Edinger (1858), 10 Gal. 150, 160. Why 
is Johnson v. Sherman not reprinted in California Unreported Cases? 

27(1859), 13 Cal. 116, 124-125. 

28 (1877), 96 U. S. 332, 24 L. Ed. 775. 

2»Benham v. Rowe (1852), 2 C:al. 387. The earlier cases of Wood- 
worth V. Guzman (1850), 1 Cal. 203; Walker v. Hauss-Hijo (1850), 1 Cal. 
184, and Moore v. Reynolds (1850), 1 Cal. 351, though they mention 
mortgages do not discuss their principles at all. 

80 At p. 401. 



1 



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FIELP AS LAWYER AND JUDGE 97 

ing the opinion in Peugh v. Davis,*^ "It is also an established doc- 
trine that an equity of redemption is inseparably connected with a 
niortgage." 

The Court held in Benham v. Rowe that where a mortgagee 
becomes purchaser under a power of sale, the equity of redemption 
still attaches to the property in favor of the mortgagor. Probably 
Field had in mind the proposition there established that a mort- 
gagee may not purchase at his own sale under power, when he 
said in McMillan v. Richards:** "The owner of the mortgage in 
this state can in no case become the owner of the mortgaged 
premises, except by purchase upon sale under judicial decree con- 
summated by conveyance." And he had in mind the circumstances 
in Benham v. Rowe when in Fogarty v. Sawyer,** in the very act 
of establishing the doctrine that a sale could be made under a power 
in a mortgage, notwithstanding Section 260 of the Practice Act he 
said: "in the present case no question is made as to the regularity 
of the proceedings taken by the mortgagee, or the good faith of the 
sale made by him."** 

The argument in Benham v. Rowe indicates a thorough study 
of the law respecting sales under powers, and the influence of that 
study is reflected in the cases in which Field established the 
existence of the power of sale mortgage and the trust deed as 
security.** Professor Kidd suggests in his valuable article upon 
Trust Deeds and Mortgages in California,*" that the language of 
Section 260 of the Practice Act, reenacted in Section 744 of the 
Code of Civil Procedure, might have warranted a construction 
which would have forbidden a sale under a power. The remark 
is very pertinent, and, indeed, suggests the more natural interpre- 
tation of the statute, if merely its language be looked at. The 
section provides that "a mortgage of real property shall not be 
deemed a conveyance, whatever its terms, so as to enable the 
owner of the mortgage to recover possession of the real property 
without a foreclosure and sale." But Field's personal familiarity 

" (1877), 96 U. S. 332, 337, 24 L. Ed 775. 

»* (1858), 9 Cal. 365, 411. This is the general rule. Jones, Mortgages 
(5th ed), § 1876. 

w(l861), 17 Cal. 589. 

•* See, also, his opinion in Bell Mining Company v. Butte Bank 
(1895), 156 U. S. 470, 478, 39 L. Ed. 497, 15. Sup. Ct. Rep. 440, where 
similar language is used about regularity and good faith. 

M Fogarty v. Sawyer (1861), 17 Cal. 589; Koch v. Briggs (1859), 14 
Cal. 256. 

••3 California Law Review, 368. 



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CALIFORNIA LAW REVIEW 



with the power of sale mortgage had shown him that equity pos- 
sessed ample means for the protection of the mortgagor, if there 
is injustice or oppression, and his legal sense taught him the 
utility in the California of that day of a form of security whereby 
the creditor could have a better guaranty, in view of the fluctuat- 
ing values of land, than was afforded by the judicial sale with its 
six months' period of redemption. He had been forced, probably 
against his inclination, to follow in McMillan v. Richards the rule 
established in the earlier cases, that where a mortgagee sells at 
judicial sale, he sells like any other judgment creditor subject to 
the right of redemption, and Fogarty v. Sawyer was a natural 
supplement to that doctrine. 

V. 

What was thought by business men of the doctrine that the 
equity of redemption continues after the sale of foreclosure, is 
expressed in a little book by James de Fremery on Mortgages in 
California.'^ Mr. de Fremery writes as a business man, who had 
experience in investing for capitalists in California property, and 
from the considerable portion of his little book which is devoted 
to aliens, it would seem that he was writing largely for the instruc- 
tion of foreign investors. At p. 73, Mr. de Fremery says : 

"In this State the mortgagor has a statutory right of 
redemption after sale under foreclosure, and so has each of his 
creditors, holding a subsequent lien by judgment or mortgage. 
.... It may be doubted whether the right of redemption, 
except as regards sales of property under execution for a 
deficiency, has been rightly held applicable to sales of mort- 
gaged premises under foreclosure of the mortgage. In a strictly 
legal point of view it would appear imnecessary to stretch the 
meaning of the section so as to include such sales whilst cer- 
tainly in equity the mortgagor can hardly be considered 
entitled to so much leniency. He has known when the debt 
would be due; he has had it in his power to avail himself of 
his equitable right of redemption until the suit in foreclosure, 
of which he had due notice, resulted in a sale of the premises 
mortgaged. He had ample time to save his estate, if he had 

the will and the means In but very few cases this right 

of redemption from sales on foreclosure of mortgage has 
been availed of by the parties in interest. The right alluded 
to has therefore been of very little benefit to mortgagors and 
at the present day this same statutory right of redemption 

'^Mortgages in California, a Practical Essay, by James de Fremery. 
San Francisco: J. J. Lc Count, 1860. 



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FIELP AS LAWYER AND JUDGE 99 

operates greatly to their disadvantage, for lenders of money 
want a much larger margin in the value of the security than 
they would otherwise require, on account of the delays which 
may result from it."*® 

The business needs of the community were met by the decisions 
in Koch v. Briggs sustaining the deed of trust as a form of 
security, and by Fogarty v. Sawyer recognizing the validity of the 
sale under a power in a mortgage. Justice Field was much better 
prepared to write these opinions, he understood better the real 
needs of the community, because this part of the law had been in a 
real sense a part of his life. The jurist no less than the poet or 
the painter or the sculptor, though subject of course to different 
limitations, embodies forth his own experience. The mere closet 
philosopher, the arid compiler of precedents, the mechanical 
repeater of legal formulae, never creates law, never embodies in 
legal institutions the needs of mankind struggling for utterance. 

Scarcely had Field left the bench of California to enter upon 
his wider career as a Justice of the United States Supreme Court, 
than the effect of Fogarty v. Sawyer was much impaired by the 
dictum in the case of Cormerais v. Genella,'* suggesting that pos- 
sibly a right of redemption might exist where a sale was made 
under a power. This dictum which was squarely opposed to the 
passage in Fogarty v. Sawyer quoted above, which says that the 
title passes when the deed is made under the power, has served to 
prevent the general use of the power of sale mortgage. It is impos- 
sible to estimate the cost that mortgagors have paid for this obiter 
dictum. It is safe to say, however, that each has paid something for 
it; that every mortgagee, consciously or imconsciously, has taken 
into accoimt the possibility of the difficulty in the enforcement of 
his mortgage in making his loan. If railroads and good roads are 
essential to the development of civilization, a clear and definite 
system of law is equally indispensable. The importance of the 
development of legal concepts even from the material point of 
view can hardly be overestimated. Field's judicial mind firmly 
held to the necessity of clearness in legal conceptions. He rarely 
indulged in the luxury of speculation as to what might or might 
not be the law with reference to situations not presented. 

It was perhaps unfortunate that Koch v. Briggs was decided 



*« Compare Professor Kidd's conclusions in 1915 with Mr. de Fremery's 
in 1860, 3 California Law Review, 400-403. 
w (1863), 22 Cal. 116. 



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before Fogarty v. Sawyer, for in the former case there was too 
much emphasis laid on the passage of the legal title under the deed 
of trust, and upon the proposition that there could be no fore- 
closure under such a conveyance. The obvious distinction between 
Koch V. Briggs and the ordinary mortgage was that the legal title 
passed to the trustee in the trust deed, whereas it had been decided 
that it did not in the case of the mortgage, and it was this obvious 
distinction that was emphasized. Field himself many years later 
in Bell Mining Co. v. Butte Bank*® reconsidered the positions 
assumed in Koch v. Briggs, and treats the two forms of security 
as practically identical. He cites the Fogarty and the Koch cases 
as establishing the same principle, omits from his quotation of the 
former the statement that the instrument is a mortgage, speaks of 
"trust deeds in the nature of mortgages," and recognizes that the 
power of sale in the trust deed as in the mortgage is "an additional 
authority to the grantee or mortgagee." He makes it positively 
clear in this case that where there is a sale under a power in a 
mortgage, the mortgagor's right "is wholly divested, embracing his 
equity of redemption." 

Field's most elaborate decision on the subject of the law of 
mortgage was McMillan v. Richards*^ in which was finally estab- 
lished the proposition that no title, either legal or equitable, passes 
to the mortgagee in California. The point was by no means clear 
before that decision, as a reading of the very able argument of 
John Currey, reported with the case, will show. Field's views 
upon the subject may well have been affected by his study in the 
case of Low v. Henry, and in the earlier case of Bryan v. Sharp,** 
where he had succeeded in maintaining the proposition that the 
mortgagee had no interest in the mortgaged land capable of being 
sold at sheriff's sale. 

Dutton V. Warschauer,** where Field decided that the legal 
title did not pass even in the case of mortgages given before the 
Practice Act of 1851, was covered by the case of Ferguson v. 
Miller,** where Field himself had contended for the proposition 
which he declared unsound in the Dutton case. His contention, 
indeed, had received scant courtesy from Heydenfeldt, who 



*o (1895), 156 U. S. 470, 39 L. Ed. 497, 15 Sup. Ct. Rep. 440. 

*i (1858), 9 Gal. 365. 

« (1854). 4 Gal. 349. 

" (1863), 21 Gal. 609. 

** (1854). 4 Gal. 97. 



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FIELD AS LAWYER AND JUDGE loi 

delivered the opinion. It is worthy of note that Field did not refer 
to this precedent in his decision in Dutton v. Warschauer. Pos- 
sibly he thought it incorrect, for he recognizes that mortgages 
before the statute may sometimes be treated as conveyances, "when 
that character is essential to protect the just rights of the mort- 
gagee," though mortgages since the Practice Act must always be 
considered as mere securities. It is characteristic of Field that he 
should have made this reservation. His intellectual honesty led 
him to doubt whether his position in that case had been funda- 
mentally soimd, but he had argued the point with sincerity as he 
argued all points. The reservation that in mortgages prior to 1851 
the legal title might be considered to pass when "essential to pro- 
tect the just rights of the mortgagee" left him a ground for justi- 
fying his argument in the earlier case.** 

VI. 

Even in trifling matters, the influence of Field's work at the bar 
may sometimes be traced. One can imagine for example, that he 
had in mind his own experiences in practice (possibly in the case 
of Live Yankee Company v. Oregon Company),** when he gave 
utterance to one of the very few examples of humor to be found 
in his opinions. Like every other judge, with a proper conception 
of the judicial oflice, including Field's own brilliant associate, the 
author of "Flush Times in Alabama," the professional humorist, 
Joseph G. Baldwin, he was never guilty of the undignified practice 
of writing so-called humorous opinions, nor, indeed, of the hardly 
less dignified and more reprehensible practice of making his 
judicial decisions the vehicle for the expression of his personal 
predilections and opinions. The most scrupulous purist will, how- 
ever, forgive his remarks in Fuller v. Hutchings, in answer to an 
argument that a new trial should have been granted for surprise: 
"The surprise alleged is only that the law was different from what 
the attorneys supposed it to be — 2l state of feeling which, in numer- 



*»Claik V. Baker (1860). 14 Cal. 612, was a case where Field deemed 
that the "just rights of the mortgagee" required the instrument to be 
treated as a conveyance, though executed after the Practice Act; Sands v. 
Pfcifcr (1858), 10 Cal. 258, was another. A complete discussion of Field's 
theory of the mortgage would be of value. 

^ (1857). 7 qS. 40. 



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I02 CALIFORNIA LAW REVIEW 

ous instances, under like circumstances, has been experienced by 
other counsel, but has never availed to obtain a new trial. "*^ 
Was the "other coimsei" possibly Field himself? 

VII. 

In the hundred years since Field's birth, the world has swung 
far, and since his accession to the bench in September, 1857, ^^^ 
law has undergone many changes. The law of corporations, of 
public service, of employer and employee, to mention but a few 
examples, has developed in new directions since that time.*® Courts, 
in 1857, had not yet enmeshed themselves in the maze of arbitrary 
rules of procedure and evidence from which, sometimes only 
through legislative aid, they are again succeeding in extricating 
themselves. The vital principles of the law were not yet in danger 
of being choked under an undergrowth of statutory detail and ill- 
reasoned precedents.*® The great social questions of to-day were 
not demanding treatment from the courts. In spite of changes, 
however. Field's fundamental views of the judicial office in many 
respects bear a strikingly modem aspect. We have already men- 
tioned his pronounced views upon the importance of an independent 
bench and an independent bar. Closely connected with this prob- 
lem of relations of bench and bar is that of the relation of pro- 
cedure of substantive law. Field's views on this question are in 
effect those of Professor Pound and the American Judicature 
Society. 

Rules of court procedure are to him means to an end, adminis- 
trative rather than legislative.**^ Such artificialities as an objection 



*^ (1858), 10 Gal. 523, 526. Another example of Field's humor may 
be found in Touchard v. Crow (1862), 20 Gal. 150, 164, where he comments 
upon the conduct of a trial judge who went through the solemn 
process of charging himself as a jury. 

*8 For an account of the development of the law between 1830 and 1860, 
see Warren, History of the American Bar, 446 et seq. 

*®In 1845, twelve years before Field went on the bench, it was esti- 
mated that there were 1608 volumes of English and American reports, 
(Wallace, The Reporters, Preliminary Remarks, § 20). In 1915, there were 
over 9,000 volumes of reports of United States courts, not to mention 
those of the English, Irish, Scotch and Golonial courts. (Dean Harlan F. 
Stone, Law and Its Administration, p. 211). 

50 In Adams v. Town (1853), 3 Gal. 247, and in Brummagim v. Boucher 
(1856), 6 Gal. 17, as counsel he successfully employed writs of error. 
The only occasion upon which such writ seems to have been used since the 
Gode is Ex parte Thistleton (1877), 52 Gal. 220. 



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FIELP AS LAWYER AND JUDGE 103 

to an indictment for murder, because it is not stated that the 
wound was "mortal,"** or an objection to the validity of a convic- 
tion, because one of the jury separated from the rest, while he 
helped to carry out a fainting witness,"^ he readily brushed aside. 
On the other hand, though he knew how to meet that "subtilty that 
is fine" but "unrighteous," and that "wresteth the open and mani- 
fest law," he could employ equally well that "subtilty" which is 
"wise and judgeth righteously."** An evasive allegation or denial 
could not escape his lynx-like eye.** Though now and then he 
reads a homily on bad pleading, as in Green v. Palmer,** — for, like 
Chief Justice Hobart, he, too, thought that "pleading is not talk- 
ing" — ^he almost invariably decides cases on their merits. It is 
true that during the earlier part of his judicial career, he rather 
freely dismissed appeals for failure to produce proper records. 
But he was curing an intolerable abuse, causing annoyance, loss 
and confusion.** The stringent treatment soon effected a cure. 

Typical of the way he handled such rules as are essential for 
the orderly discharge of judicial business is the case of Barrett v. 
Tewksbury.*^ In that case, the court, through Field, announced 
that in all pending appeals, in which the terms of the Practice Act 
respecting records on appeal had not been complied with, counsel 
should be permitted to file amended records, but that in the future 
the rule would be rigorously enforced. Could there be a clearer 

" People V. Judd (1858), 10 Gal. 314. 

»2 People V. Lee (1860), 17 Cal. 76. 

"Chief Justice Hobart in Pitts v. Jones (1615), Hob. 121, 125, 80 
Eng. Rep. R. 271. Cf. Thayer, Treatise on Evidence, p. 290; and Chief 
Justice Beatty's remark in Dennis v. Bint (1898), 122 Cal. 39, 49, 54 Pac. 378, 
about meeting a technicality with a technicality. The quaint force of C^ef 
Justice Hobart's language warrants further quotation. "And so I conunend 
the Judge, that seems fine and ingenious, so it tend to right and equity, 
and namely, that in these cases of captious misnomers doth mold the small 
disorders of the name to make good the contract and bargain. And 
I condemn them that either out of pleasure to shew a subtil wit will destroy, 
or out of incuriousness or negligence will not labor to support the act 
of the party by the art or act of the law." 

»*Sce, for example. Letters, alias Cady v. Cady (1858), 10 C:al. 533, 
where he points out that the allegation that plaintiff and defendant lived 
together "as husband and wife" is not an allegation that they were married. 
See his remarks on evasive denials in S. F. C^s Co. v. S. F. (1858), 9 Cal. 
453, and in Curtis v. Richards (1858), 9 C:al. 33. 

w (1860), 15 Cal. 411. 

••See, c.g., Wmg v. Owen (1858), 9 Cal. 247; Marlow v. Marsh 
(1858). 9 Cal. 259; Mcerholz v. Sessions (1858), 9 Cal. 277; People v. 
Edwards (1858), 9 C:al. 286; Waltham v. Carson (1858). 10 Cal. 178 
(frivolous appeal dismissed with 10 per cent damages) ; Mc(xill v. Rainaldi 
(1858). 11 Cal. 391 (the same penalty). 

" (1860), 15 CaL 354. 



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104 CALIFORNIA LAW REVIEW 

recognition of the administrative nature of procedural statutes 
than by this temporary suspension of its effect? In People v. Lee,'® 
speaking of a statute fixing the time for presentation of a bill of 
exceptions, he says : "The statute is not unlike a rule of Court, to 
be enforced to advance the ends of justice, and not to prevent their 
attainment." He held that a failure to comply with the require- 
ment as to time of presentation did not absolutely require that the 
bill be refused settlement. 

The doctrine which regards statutes respecting procedure as 
directory rather than mandatory is usually the corollary of a 
theory that courts possess inherent powers, independently of legis- 
lative action. A great English jurist, speaking of this rule-mak- 
ing power, says, "The best of all would be that the courts should 
never be wanting in the knowledge of their own inherent powers 
and the courage to use them.""* Field both knew and dared to use 
these powers. If anything, he insisted too strongly upon the doc- 
trine of the inherent powers of courts, as in Houston v. Williams,*® 
where he denied the legislature's power to direct the judges to file 
written opinions. 

Save in the matter of the independence of the judiciary. Field 
was not disposed, while a member of the California court, to 
insist on a strict construction of the legislative powers under the 
constitution. His dissenting opinion in Ex parte Newman®^ is a 
(I forceful expression of the duty of courts to abstain from substi- 

tuting their own judgment for that of the legislature in considering 
the constitutionality of statutes. 

"The judiciary cannot say that the legislature was mis- 
taken, and therefore the act unconstitutional without passing 
out of its legitimate sphere, and assuming a right to supervise 
the exercise of legislative discretion in matters of mere exped- 
iency .... Its assumption would be usurpation, and well 
calculated to lessen the just influence which the judiciary 
should possess in a constitutional government."** 
And in his opinion in McCauley v. Brooks** and his dissenting 
opinion in Lin Sing v. Washburn,** he shows how peculiarly the 



M (1860), 14 Cal. 510. 

»» Pollock, The Genius of the Common Law, p. 74. 

•0 (1859), 13 Cal. 24. 

•1(1858), 9 Cal. 502. 

•2 At p. 529. 

•» (1860), 16 Cal. 11, 56. 

«* (1862). 20 Cal. 534. 586. 



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FIELD AS LAWYER AND JUDGE 105 

question of the constitutionality or unconstitutionality of a statute 
frequently turns upon a question of degree. The doctrine is not 
stated in the brilliant literary form which Holmes gives it in Ellis 
V. United States** and in Haddock v. Haddock,** but the thought 
is essentially the same. Field would have concurred with every 
word that James Bradley Thayer used in the following passage in 
his sketch of John Marshall :*^ 

"Courts, as has often been said, are not to think of the 
legislators, but of the legislature, — the great, continuous body 
itself, abstracted from all the transitory individuals who may 
happen to hold its power. It is this majestic representative 
of the people whose action is in question, a co-ordinate depart- 
ment of the government, charged with the greatest functions, 
and invested, in contemplation of law, with whatever wisdom, 
virtue and knowledge the exercise of such functions require." 

vin. 

A crucial test, whereby to measure his judicial character is 
afforded by a judge's attitude towards the theory of precedent.** 
Between Lord Kenyon, who found it his "comfort" to "servilely 
tread" in the "footsteps" of his predecessors,** and Lord Stowell, 
who thought judges and lawyers overfond of precedent, there lies 
a wide chasm.^^ One who thinks upon the question must, indeed, 
recognize a certain necessary and psychological basis for the exist- 
ence of the rule stare decisis, aside from its social importance. As 
Sir Frederick Pollock says, even the child appeals to precedent 
when it pleads "mamma lets me do it."^* Field recognizes the double 
foundations, — ^the habit of the human mind and the needs of cer- 
tainty in business— on which the doctrine rests. He says: 

"I do not assent to the proposition announced in Bryan v. 
Berry^* that the decisions of other courts are authority and to 



w (1906). 206 U. S. 246, 260, 51 L. Ed. 1047, 27 Sup. Ct Rep. 600. 

•« (1905), 201 U. S. 562. 631, 50 L. Ed. 867, 26 Sup. Ct. Rep. 525. Com- 
pare his remarks in Burnett v. City of Sacramento (1859), 12 Cal. 76, 84, 
*'no rule could be adopted which would work absolute equality. An approxi- 
mation is all that can be obtained," with Holmes's dicttun that "constitutional 
law like other mortal contrivances has to take some chances." Blinn v. 
Nelson (1911), 222 U. S. 1, 7. 56 L. Ed. 65, 32 Sup. Ct. Rep. 1. 

«^At p. 108-9. 

•* See diverse views on this subject mentioned by the writer, ''Changing 
Conceptions of the Law," 3 California Law Review, 440, 450. 

««Bauerman v. Radenius (1798), 2 T. R. 663, 668; Hosmer, C. J., in 
Card V. (rfinman (1823), 5 Conn. 164, 168. 

TO w. W. Story, Life and Letters of Joseph Story, Vol. I, p. 556. 

Ti Pollock, "Laws of Nature and Laws of Man," in Essays on Juris- 
prudence and Ethics, p. 56. 

" (1856), 6 Cal. 398. 



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io6 CALIFORNIA LAW REVIEW 

be respected only from the reasoning upon which they are 
based. The proposition is not sound except in a very restricted 
sense. The law is a science whose leading principles are 
settled. They are not to be opened for discussion upon the 
elevation to the bench of every new judge, however subtle his 
intellect, or profound his learning, or logical his reasoning. 
Upon their stability men rest their property, make their con- 
tracts, assert their rights and claim protection It is 

possible that some intellects may rise to the perception of abso- 
lute truth and be justified in questioning the general judgment 
of the learned of mankind. But before the legitimate and just 
inference arising from the general acquiescence of the learned 
can be avoided, the error in the principles should be clearly 
shown. We should not blindly adhere to precedents, nor should 
we more blindly abandon them as guides."^* 
The perpetual antimony of the law, the conflict between law and 
equity, between form and substance, between statute and common 
law, between logic and experience, between legislation and interpre- 
tation finds illustration in this passage, as it does in the entire 
legal and judicial career of Stephen J. Field. The theory of an 
unchanging science of law, of an artificial perfection of reason has 
to be reconciled with that of the theory that the judge shall not in 
all cases "blindly" follow precedent. Fortunately for the pioneer 
State, Field possessed that respect for the system of the conmion 
law which every true lawyer must possess ; fortunately also he had 
a learning in the law rivalled by few American judges of his day.^* 
But most fortunate of all, his active life had been a part of the life 
of the State, and he had the rare power of translating life into law. 
If law is ultimately a product of social and economic forces, it is 
through great personalities, such as that of Field, that these forces 
must find their expression. 



7» Ex parte Newman (1858), 9 Cal. at p. 527. 

^*An enumeration of the contemporary American judges is sufficient 
to indicate that even in the matter of legal learning Field ranked very 
high among these great men. The Supreme Court of the United States in 
1857 was composed of the following members: Taney, McLean, Wayne, 
Catron, Daniel, Nelson, Grier, Campbell, and Qifford. On the state benches 
we find such names as Shaw of Massachusetts, Denio of New York, Storrs 
of Connecticut, Green and Williamson of New Jersey, Ames of Rhode 
Island, Redfield of Vermont, Lewis of Pennsylvania, Caton of Illinois, 
Lumpkin of Georgia, Rice of Alabama, English of Arkansas, Bartley of 
Ohio, Gilpin and Harrington of Delaware, Tenney of Maine, Perley of New 
Hampshire, O'Neall of South Carolina, Allen of Virginia, Scott of 
Mississippi, Nash of North Carolina, Wheat of Kentucky, Caruthers of 
Tennessee, Martin of Michigan, Le Grande of Maryland, Merrick of 
Louisiana, and Perkins of Indiana. 



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FIELp AS LAWYER AND JUDGE 107 

Bagehot in his essay on Macaulay speaks of men who "think 
literature more instructive than life."^* "There is a whole class of 
minds," he says, "which prefers the literary delineation of objects 
to the actual eyesight of them. To some life is difficult. An 
insensible nature, like a rough hide, resists the breath of passing 
things; an tmobservant retina in vain depicts whatever a quicker 
eye does not explain. But anyone can understand a book; the 
work is done, the facts observed, the formulae suggested, the 
subjects classified." 

Field's mind was the antithesis of all that is described by Bage- 
hot as characteristic of Macaulay. It was a first-hand, not a 
second-hand mind ; it was one not fed on pre-digested food ; it was 
that of the man of affairs dealing with things of the mind, not that 
of the closet student dealing with affairs. Field looked at life 
directly; he required no smoked glasses. 

Orrin K. McMurray, 
Berkeley, California. 



^5 Thomas Babington Macaulay in Collected Works, ed. by Mrs. Russell 
Harrington, Vol. II, p. 94. 



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Justice Field's Opinions on Consti- 
tutional Law 

I. 

Commerce Under the Constitution. 

THE act of Congress of March 3, 1863, entitled "An Act to 
provide Circuit Courts for the Districts of California and 
Oregon," authorized the appointment of one additional 
Associate Justice of the Supreme Court of the United States. 
Stephen J. Field, then Chief Justice of the Supreme Court of Cali- 
fornia, was appointed by President Lincoln to fill the position thus 
created, and was allotted to the district covering California and 
Oregon.^ Justice Field's first opinions appear in the 23rd volume 
of Wallace's Reports, and, down to 163 United States, covering 
nearly one hundred volumes, every volume, except three, namely, 
23 Wallace, 126 United States and 135 United States, contains 
opinions written by him. These opinions cover many branches of 
both public and private law. 

Justice Field's service in the Supreme Court extended over a 
period of thirty-four years, from May, 1863, to December, 1897, 
extending over a period longer than that of any other justice. The 
two judges, whose terms almost equalled that of Justice Field, were 
Chief Justice Marshall and justice Harlan. His appointment came 
in the midst of the Civil War, and Justice Field had to deal with 
the great problems growing out of that struggle. The Reconstruc- 
tion period furnished its series of important cases. The adoption 
of the Thirteenth, Fourteenth, and Fifteenth Amendments opened 
up a vast field of new constitutional construction. The economic 
and industrial expansion of the eighties and nineties presented 
numerous questions which came before the Supreme Court for 
final review. In the judicial consideration given to these cases 
Justice Field took a part, always active, important and influential, 
and frequently commanding. 

When Justice Field took his place on the bench at Washington, 
the Supreme Court was presided over by Chief Justice Taney, and 
the Associate Justices thereof were Justices Wayne, Nelson, Clifford, 
Miller, Catron, Grier, Swayne, and Davis. He served throughout 

1 (1863), 2 Black 7. 



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FIELD ON CONSTITUTIONAL LAW 109 

the terms of Chief Justices Chase and Waite, and during nine years 
of the term of Chief Justice Fuller. Other justices who sat with 
him, for longer or shorter times, during his extended term of ser- 
vice were Justices Strong, Bradley, Hunt, Harlan, Woods, Mat- 
thews, Gray, Blatchford, L. Q. C. Lamar, Brewer, Brown, Shiras, 
Jackson, White, and Peckham. The mention of these names gives 
the personal color of the court. 

The purpose of these papers is to make a study of the consti- 
tutional opinions of Justice Field. Characterization and apprecia- 
tion of his work will come better after, rather than before, the 
examination of his opinions. 

The subject of constitutional construction before the Supreme 
Court during Justice Field's term which demanded the largest 
attention was that of interstate and foreign commerce. The close 
of the Civil War was attended with expanding commercial inter- 
ests, and consequent conflicting views of the sphere of state and 
national control of the subject of commerce show themselves. 
Before the year 1840, the construction of the conunerce clause of 
the Constitution^ had been involved in but five cases submitted to 
the Supreme Court. In i860 the number of cases in the court on 
that subject had increased to twenty; in 1870 the number was 
thirty; in 1880 the number had increased to seventy-seven; in 1890 
it was one hundred and forty-eight; and by the time of Justice 
Field's retirement the number was not less than two hundred.* 

Justice Field's position in the determination of all questions 
involving the conflicting jurisdiction between state and nation on 
the subject of interstate and foreign commerce was clear, logical 
and tmdeviating. It has been a subject that has perplexed the 
court on many occasions, and the court has not found it easy to 
establish a rule or especially, to apply a rule when established to 
difficult and delicate adjustments of jurisdiction. One of Justice 
Field's earliest opinions was in the well known case of The Daniel 
Ball.* Several important principles were laid down in this case, 
making it a leading authority. It is most frequently cited for its 
definition of what constitutes the navigable waters of the United 
States. Wherever interstate and foreign commerce extends, the 



*U. S. Const. Art. I, § 8: "Congress shall have power .... to regu- 
late commerce with foreign nations, and among the several states, and 
with the Indian tribes." 

* Prentice & £gan, Commerce Qause of the Federal Constitution, 14. 

* (1870), 10 Wall. 557. 19 L. Ed. 999. 



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power of the United States goes with it for its protection. The 
authority of Congress is not limited to navigation on the ocean, or 
to the great rivers, like the Mississippi, Ohio, and Hudson, but 
extends to all lakes and streams, which by their connections make 
channels of interstate or foreign commerce. The common law test 
of navigability, the rise and fall of the tide, is supplanted by a new 
test, the test of navigability in fact. On this subject Justice Field 
made the following classic statement : 

The doctrine of the common law as to the navigability of 
waters has no application in this country. Here the ebb and 
flow of the tide do not constitute the usual test, as in England, 
or any test at all of the navigability of waters. There no 
waters are navigable in fact, or at least to any considerable 
extent, which are not subject to the tide, and from this cir- 
cumstance tide water and navigable water there signify sub- 
stantially the same thing. But in this country the case is 
widely different. Some of our rivers are as navigable for many 
hundreds of miles above as they are below the limits of tide 
water, and some of them are navigable for great distances by 
large vessels, which are not even affected by the tide at any 
point during their entire length. A different test must, there- 
fore, be applied to determine the navigability of our rivers, and 
that is found in their navigable capacity. Those rivers must 
be regarded as public navigable rivers in law which are navig- 
able in fact. And they are navigable in fact when they are 
used, or are susceptible of being used, in their ordinary condi- 
tion, as highways of commerce, over which trade and travel 
are or may be conducted in the customary modes of trade and 
travel on water. And they constitute navigable waters of the 
United States within the meaning of the acts of Congress, in 
contradistinction from the navigable waters of the states, 
when they form in their ordinary condition by themselves, or 
by uniting with other waters, a continued highway over which 
commerce is or may be carried on with other states or foreign 
countries in the customary modes in which such conmierce is 
conducted by water. 

On the other hand. Justice Field has held that a river "can 
only be deemed a navigable water of the United States when it 
forms, by itself or by its connection with other waters" a "continued 
highway over which commerce is or may be carried on with other 
states or foreign countries in the customary modes in which such 
commerce is conducted by water. If, however, the river is not 
itself a highway for commerce with other states or foreign coun- 
tries, or does not form such highway by its connection with other 
waters, and is only navigable between different places within the 



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FIELD ON CONSTITUTIONAL LAW in 

state, then it is not a navigable water of the United States, but 
only a navigable water of the state."" 

On the doctrine thus established it was held in The Daniel Ball 
that a steamer transporting, on a navigable water of the United 
States as there defined, goods destined for other states, was 
engaged in interstate commerce; that whenever a conunodity has 
begun to move as an article of trade from one state to another, 
commerce between the states in that commodity has commenced; 
and the fact that several different and independent agencies are 
employed in transporting the commodity, sonie acting in one state, 
and others through two or more states, does not affect the char- 
acter of the transaction, each agency, to the extent to which it 
acts in such transportation, being subject to the regulations of 
Congress. Hereon Justice Field said: 

We are unable to draw any clear and distinct line between 

the authority of Congress to regulate an agency employed in 

commerce between the states when that agency extends 

through two or more states, and when it is confined in its 

action entirely within the limits of a single state. If its 

authority does not extend to an agency in such commerce, 

when that agency is confined within the limits of a state, its 

entire authority over interstate commerce may be defeated.® 

It has been said that it may be doubted whether any one 

decision of the Supreme Court has placed so much power within 

the hands of Congress as the case of The Daniel Ball.^ 

Justice Brown has summed up the law of the constitutional 
construction of the commerce power, by saying® that the adjudica- 
tions of the Supreme Court with respect to the power of the states 
over the general subject of commerce are divisible into three 
classes. First, those in which the power of the state is exclusive; 
second, those in which the states may act in the absence of legisla- 
tion by Congress; third, those in which the action of Congress is 
exclusive and the states cannot interfere at all. The first class, 

•The Montello (1870), 11 Wall. 411, 415, 20 L. Ed. 191. In this case 
the court held that from the information presented they could not affirm that 
the Fox River, in Wisconsin, formed such a continued highway as to be 
considered a navigable water of the United States. But in a later case, 
[The Montello (1874), 20 Wall. 430, 22 L. Ed. 391] it was held that the 
Fox River was to be brought within the class of streams forming continued 
highways of commerce, although its navigability was interrupted by rapids 
and falls around which portages had to be made. 

•The Daniel Ball (1870), 10 Wall. 557, 566, 19 L. Ed. 999. 

^ Great American Lawyers, 73. 

•Covington & Cincinnati Bridge Co. v. Kentucky (1894), 154 U. S- 
204, 209, 38 L. Ed. 962. 14 Sup. Ct. Rep. 1087. 



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including all those wherein the states have plenary power, and 
Congress has no right to interfere, concerns the strictly internal 
commerce of the state, and while the regulations of the state may 
affect interstate commerce indirectly, their bearing upon it is 
so remote that it cannot be termed in any just sense an interference. 
In a case to which we have already referred the court held, 
speaking through Justice Field, that a state might regulate the 
navigation of the strictly internal waters of the state, such waters, 
that is, as do not by themselves or by connection with other 
waters form a continuous highway over which commerce may be 
carried on with other states or with foreign countries.® 

In the second class mentioned by Justice Brown, those con- 
cerning what may be termed concurrent jurisdiction over com- 
merce, Justice Field rendered a number of decisions. Among the 
subjects of concurrent jurisdiction is the regulation of pilots. 
Accordingly, Justice Field upheld a law of California which r^;u- 
lated the pilotage of vessels through the Gk)lden Gate.^® There was 
a dissent in this case, which did not, however, impugn the general 
principle. Justice Miller, who wrote the dissenting opinion, said 
that the point of difference was whether the act of Congress of 
1852 covered the subject-matter of the California statute so as to 
oust the state of jurisdiction. The majority of the court held that 
it did not. 

In County of Mobile v. Kimball^* it was held that the improve- 
ment of harbors, bays and navigable rivers was within the concur- 
rent power of the states. Justice Field's opinion in Mobile v. 
Kimball, however, cuts a larger figure than the determination of 
this mere question, and was destined to play an important role in 
furnishing a test for the general validity of the state's action. 
Justice Curtis had, in the case of Cooley v. Port Wardens,^^ formu- 
lated a rule, previously suggested by Webster as counsel in Gib- 
bons v. Ogden,^^ and taken up by Justice Woodbury in both the 
License Cases^* and the Passenger Cases." Justice Curtis said: 
"The power to regulate commerce embraces a vast field, contain- 
ing not only many, but exceedingly various subjects, quite unlike 

»The Montello (1870), 11 Wall. 411, 20 L. Ed. 191. 

10 Steamship Co. v. Joliffe (1864), 2 Wall. 450. 17 L. Ed. 805. 

11 (1880), 102 U. S. 691, 26 L. Ed. 238. 

12 (1851), 12 How. 298» 13 L. Ed. 996. 
18 (1824), 9 Wheat. 1, 6 L. Ed. 23. 

1* (1847), 5 How. 504, 624, 625, 12 L. Ed. 256. 
" (1849), 7 How. 283, 559-561, 12 L. Ed. 702. 



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FIELD ON CONSTITUTIONAL LAW 113 

in their nature; some imperatively demanding a single uniform 
rule, operating equally on the commerce of the United States in 
every port ; and some, like the subject now in question, as impera- 
tively demanding that diversity which alone can meet the local 
necessities of navigation. Either absolutely to affirm or deny that 
the nature of this power requires exclusive legislation by Congress, 
is to lose sight of the nature of the subjects of this power, and to 
assert concerning all of them what is really applicable to a part. 
Whatever subjects of this power are in their nature national, or 
admit only of one uniform system or plan of regulation, may justly 
be said to be of such a nature as to require exclusive legislation by 
Congress." What had hitherto been a contest concerning the 
cxclusiveness of the federal power over commerce became, after 
Justice Curtis' statement of the rule, a dispute over the determina- 
tion whether the power in question was local or national in its 
nature, requiring or not requiring a rule capable of uniform applica- 
tion. Now, Justice Field's opinion in Mobile v. Kimball sought 
to furnish a clue to the determination of this question, by declaring 
that the controlling purpose of the commerce clause in the Consti- 
tution was to secure interstate commerce from conflicting or dis- 
criminating state regulations, and that the application of Justice 
Curtis' rule must be made in the light of that purpose. Accord- 
ingly, the discriminating or non-discriminating nature of a state 
statute would aflFord the test of its constitutionality. If, however, 
it was meant to imply that that was the only test, the court has 
taken a different view, saying that the question of discrimination 
"does not meet the difficulty. Interstate conmierce cannot be 
taxed at all, even though the same amount of tax should be laid 
on domestic commerce."*® Justice Field saw this as quickly as 
any one, for he said in another case : "What is an article of com- 
merce is determinable by the usages of the commercial world, 
and does not depend upon the declaration of any state. The 
state possesses the power to prescribe all such regulations with 
respect to the possession, use and sale of property within its limits 
as may be necessary to protect the health, lives and morals of 
its people ; and that power may be applied to all kinds of property, 
even that which in its nature is harmless. But the power of 

i«Per Bradley, J., in Robbins v. Shelby County Taxing District (1886), 
120 U. S. 489, 497, 30 L. Ed. 694, 7 Sup. Ct Rep. 592. In this case Chief 
Justice Waitc wrote a dissenting opinion, in which Justices Field and Gray 
concurred. 



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regulation for that purpose is one thing, and the power to 
exclude an article from commerce by a declaration that it shall 
not thenceforth be the subject of use and sale, is another and 
very different thing. If the state could thus take an article from 
commerce, its power over interstate commerce would be superior 
to that of Congress, where the Constitution has vested it."*^ 
However, the Bowman case, from which we have just quoted, 
exemplifies not so much the aspect of the commercial power 
we are now considering as that which falls under the third head, 
where the power of Congress is exclusive. 

In several important cases, in which Justice Field wrote 
the opinion, the Supreme Court held that a state might make 
provision for the improvement of navigation in streams by remov- 
ing obstructions and deepening channels; and, even, for the sake 
of the general commerce of the state, obstruct the free naviga- 
tion of the stream by bridges and highways. The general prin- 
ciple underlying such cases is thus expressed: 

The states have full power to regulate within their limits 
matters of internal police, including in that general desig- 
nation whatever will promote the peace, comfort, convenience, 
and prosperity of their people. This power embraces the 
construction of roads, canals, and bridges, and the establish- 
ment of ferries, and it can generally be exercised more wisely 
by the states than by a distant authority. They are the 
first to see the importance of such means of internal com- 
munication, and are more deeply concerned than others in 

their wise management If the power of the state and 

that of the federal government come in conflict, the latter 
must control and the former yield. This necessarily follows 
from the position given by the Constitution to legislation in 
pursuance of it, as the supreme law of the land. But until 
Congress acts on the subject, the power of the state over 
bridges across its navigable streams is plenary." 




" Bowman v. Chicago & N. W. Ry. (1887), 125 U. S. 465, 501, 31 L. Ed. 
700, 8 Sup. Ct. Rep. 689, (concurring opinion). 

i«Escanaba Co. v. Chicago (1882), 107 U. S. 678, 683, 27 L. Ed. 442, 
7 Sup. Ct. 185. In this case the City of Chicago had constructed draw- 
bridges across the Illinois River, and the navigation of the stream was inter- 
rupted by the closing of the draws, which was regulated in the interest of 
traffic across the stream as much of that along the stream. The other cases 
referred to are: Cardwell v. American Bridge Co. (1885), 113 U. S. 205, 
28 L. Ed. 959, 5 Sup. Ct. Rep. 423. where the state authorized the 
construction of a bridge over the American River in California, Hamilton 
V. Vicksburg, S. & P. R. R. (1886), 119 U. S. 280, 30 L. Ed. 393, 7 Sup. Ct. 
Rep. 206, where the principle was reiterated and it was held that wherever 
the exercise of a right, conferred by law for the benefit of the public is 



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FIELD ON CONSTITUTIONAL LAW 115 

On the other hand, restrictions upon interstate commerce or 
upon the free navigation of the navigable waters of the United 
States cannot be tolerated under the guise of being police regula- 
tions. Thus, an ordinance of the city of Chicago, imposing a 
license tax for the privilege of navigating the Chicago River and 
its branches upon steam tugs licensed by the United States 
authorities, was held unconstitutional as conflicting with rightful 
federal power. Justice Field said:^* 

The decisions of this court in Huse v. Glover, 119 U. S. 
543, and in Sands v. Manistee River Improvement Co., 
123 U. S. 288, are particularly referred to and relied upon. 
The attempt is made to assimilate the present to those cases 
from the fact that it is conceded that the Chicago River is 
from time to time deepened for navigation purposes by 
dredging under the direction and at the expense of the city. 
The license fee provided for in the ordinance of the city is 
treated as in the nature of a toll or compensation for the ex- 
penses of deepening the river. But the plain answer to this 
position is that the license fee is not exacted upon any such 
ground, nor is any suggestion made that any special benefit 
has arisen or can arise to the tugs in question by the alleged 
deepening of the river. The license is not exacted as a 
toll compensation for any specific improvement of the river, 
of which the steam barges or tugs have the benefit, but is 
exacted for the keeping, use or letting to hire of any steam 
tug, or barge or tow-boat, for towing vessels or craft into 
the Chicago River, its branches or slips connected therewith. 
The business of the steam barge or tow-boat is to aid the 
movement of vessels in the river and its branches and adjacent 
waters ; that is, to aid the commerce in which such vessels are 
engaged. 

A series of cases has been decided by the Supreme Court on 
the question of the validity of state laws seeking to control the 
manner of running and operating railroad trains. When the 
provisions of these laws have been found reasonably appropriate 
to the safety and convenience of the public, and not discriminat- 
ing against interstate commerce, they have been sustained even 

attended with temporary inconvenience to private parties, in common with 
the public in general, they are not entitled to damages therefor; Huse v. 
Glover (1886), 119 U. S. 543, 30 L. Ed. 487, 7 Sup. Ct. Rep. 313; Sands v. 
Manistee River Improvement Co. (1887), 123 U. S. 288, 31 L. Ed. 149, 8 
Sup. Ct. Rep. 113, where it was held that a state might impose a 
reasonable charge, even on those engaged in interstate transportation, for 
the use of an improvement in navigation to meet the cost thereof. 

i»Harman v. Chicago (1893), 147 U. S. 396, 408, 37 L. Ed. 216, 13 
Sup. Ct. Rep. 306. 



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II ^'1 



though they incidentally affected interstate trains. One of the 
earlier of these cases was Nashville, C. & St. L. R. R. v. Ala- 
bama,**^ upholding a requirement by the state that railway engi- 
neers be examined from time to time with respect to their ability 
to distinguish colors. Justice Field said: 

It is conceded that the power of Congress to regelate 
interstate commerce is plenary; that, as incident to it, Con- 
gress may legislate as to the qualifications, duties and liabili- 
ties of employees and others on railway trains engaged in 
that commerce; and that such legislation will supersede any 
state action on the subject. But until such legislation is 
had, it is clearly within the competency of the states to pro- 
vide against accidents on trains whilst within their limits. 
Indeed, it is a principle fully recognized by decisions of 
state and federal courts, that whenever there is any business 
in which, either from the products created or the instru- 
mentalities used, there is danger to life or property, it is not 
only within the power of the states, but it is among their 
plain duties, to make provision against accidents likely to 
follow in such business, so that the dangers attending it 
may be guarded against so far as is practicable. 

In a much later case,^^ in which was declared void an order 
of a state railroad commission requiring a railway company to 
stop its interstate trains at a specified county seat, already pro- 
vided with adequate passenger facilities, the court said : 

We by no means intend to impair the strength of the 
previous decisions of this court on the subject, nor to 
assume that the interstate transportation, either of passengers 
or freight, is to be regarded as overshadowing the rights of 
the residents of the State through which the railroad passes 
to adequate railroad facilities. Both claims are to be con- 
sidered, and after the wants of the residents within a state 
or locality through which the road passes have been adequately 
supplied, regard being had to all the facts bearing upon the 
subject, they ought not to be permitted to demand more, 
at the cost of the ability of the road to successfully com- 
pete with its rivals in the transportation of interstate pas- 
sengers and freight. 

It had been found that during certain seasons of the year 
cattle brought from Texas and other portions of the South often 
communicated to Northern cattle a disease known as Texas 



I 



20 (1888), 128 U. S. 96, 99, 32 L. Ed. 352, 9 Sup. Ct. Rep. 28. 

21 Per Peckham, J., in Mississippi Railroad Comm. v. Illinois Central 
R. R. (1906), 203 U. S. 335, 346, 51 L. Ed. 209, 27 Sup. Ct. Rep. 90. 



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FIELD ON CONSTITUTIONAL LAW 



117 



fever, and for that reason a number of states passed laws ex- 
cluding Southern cattle from their territory during the part of 
the year when danger was apprehended. A statute of Missouri 
was in question in the case of Railroad Co. v. Husen,^^ in which 
an action was brought to recover damages for communication 
of disease to plaintiff's cattle. The statute forbade the transpor- 
tation of Southern cattle, not specifying those infected with dis- 
ease, into Missouri between the ist of March and the ist of 
November of each year, and made carriers transporting them 
responsible for damages resulting from Texas fever communicated 
by such cattle. The court held that these restrictions went 
beyond the danger to be apprehended, and declared the act uncon- 
stitutional. The fact remained, however, that cattle brought 
from the low lands of the South during the warm months were 
likely to carry Texas fever, and of this fact the court took 
judicial notice in the case of Kimmish v. Ball.** In this case 
the court, speaking through Justice Field, sustained a law of 
Iowa, which made persons who permitted Southern cattle to 
run at large in the state during the warm season liable for result- 
ing damage. The statute in this case, as in the Husen case, 
excluded all Southern cattle from the state during a large part 
of the year. The court said no attempt had been made in the 
Husen case to show that all cattle from the malarial districts of 
the South were infected, or that so many were infected as to 
make separation impracticable. Had such proof been given, a 
different question would have been presented. 

The paramount authority over interstate commerce resting 
in Congress, state laws must not, by way of taxes or other restric- 
tive measures, discriminate against products of other states, 
against non-resident traders, or against companies doing an inter- 
state commerce business. In attempting to indicate the Une of 
division between state and federal power. Justice Field, in a 
leading case, ** spoke as follows: 



" (1877), 95 U. S. 465, 24 L. Ed. 527, per Strong, J, 
^ (1889), 129 U. S. 217, 32 L. Ed. 692, Sup. Ct. Rep. 277. Without impugn- 
ing the decision in I^lroad Co. v. Husen, on the facts of that case, the doctrine 
of Kimmish v. Ball has been sustained by a number of recent cases, as, 
Missouri, K. & T. Ry. v. Haber (1898), 169 U. S. 613, 42 L. Ed. 878, 18 
Sup. Ct Rep. 488, Rasmussen v. Idaho (1901), 181 U. S. 198, 21 Sup. Ct. Rep. 
594; Ried v. Colorado (1902), 187 U. S. 137, 47 L. Ed. 108, 23 Sup. Ct. 
Rep. 92. 

"Welton v. Missouri (1876), 91 U. S. 275, 281, 23 L. Ed. 347. 



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ft 



There is a difficulty, it is true, in all cases of this char- 
acter, in drawing the line precisely where the commercial 
power of Congress ends and the power of the State begins. 
A similar difficulty was felt by this court, in Brown v. Mary- 
land, in drawing the line of distinction between the restriction 
upon the power of the states to lay a duty on imports, and 
their acknowledged power to tax persons and property; but 
the court observed, that the two, though quite distinguishable 
when they do not approach each other, may yet, like the 
intervening colors between white and black, approach so 
nearly as to perplex the understanding, as colors perplex 
the vision in marking the distinction between them; but that, 
as the distinction exists, it must be marked as the cases arise. 
And the court, after observing that it might be premature to 
state any rule as being universal in its application, held, that, 
when the importer had so acted upon the thing imported 
that it had become incorporated and mixed up with the mass 
of property in the country, it had lost its distinctive char- 
acter as an import, and become subject to the taxing power 
of the State; but that, while remaining the property of the 
importer in his warehouse in the original form and package 
in which it was imported, the tax upon it was plainly a duty 
on imports prohibited by the Constitution. 

Following the guarded language of the court in that case, 
we observe here, as was observed there, that it would be pre- 
mature to state any rule which would be universal in its 
application to determine when the commercial power of 
the Federal Government over a commodity has ceased, and 
the power of the State has commenced. It is sufficient to 
hold now that the commercial power continues until the 
commodity has ceased to be the subject of discriminating 
legislation by reason of its foreign character. 

In the Welton case a state statute was held invalid which 
prohibited dealing without a license, by going from place to place 
to sell the same, if any of specified articles not the growth, 
produce or manufacture of the state, no such license being 
required as to articles grown, produced or manufactured in the 
state. In Tiernan v. Rinker,^*^ a person, who was pursuing in 
Texas the occupation of selling wines and beer, filed his petition 
setting forth that the goods which he sold were the manufacture, 



28 (1880), 102 U. S. 123. 26 L. Ed. 103. In Downham v. Alexandria 
(1870), 10 Wall. 173, 19 L. Ed. 929, a municipal ordinance imposed a 
license on dealers in beer or ale by the cask when not manufactured in 
the city. It was held, Justice Field writing the opinion of the court, that 
where it is not shown that the beer and ale in which the plaintiffs deal 
was manufactured either in a foreign country or in another state, there is 
no violation of the commerce clause. 



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not of Texas, but of other states and of foreign nations, and 
praying that the county treasurer be enjoined from collecting the 
tax imposed by an act of 1873, on the ground of its repugnance 
to the Constitution of the United States. Speaking through Jus- 
tice Field, the court affirmed the doctrine of the Welton case, 
but held that as the plaintiff was also engaged in selling other 
liquors, the injunction should be refused. 

Again in Webber v. Virginia,**^ a statute was held invalid 
which required a license to be taken out by any person who 
should sell the manufactured articles or machines of other states, 
unless he were the owner and taxed as a merchant. Justice Field 
said: "If, by reason of their foreign character, the state can 
impose a tax upon them or upon the person through whom the 
sales are effected, the amount of the tax will be a matter resting 
in her discretion. She may place the tax at so high a figure 
as to exclude the introduction of the foreign article and prevent 
competition with the home product. It was against legislation of 
this discriminating kind that the framers of the Constitution 
intended to guard when they vested in Congress the power to 
regulate commerce among the several states." 

It has come to be an accepted doctrine that the business of 
all transportation companies may be regarded as a single homo- 
geneous unit, and their property, wherever situated, so long as 
used for the business of transportation, may also be considered 
as a unit for the purpose of taxation. The leading case setting 
forth this doctrine, and the first case before the Supreme Court 
involving taxation of an interstate railroad as such, was the 
case of the Delaware Railroad Tax.*^ In this case the tax was 
in form laid upon the capital stock of the railroad in proportion 
to the mileage within the state. It was shown that the value of 
the property within the state was less than the mathematical pro- 
portion based upon the mileage of the railroad within and without 
the state. It was accordingly claimed that this was an attempted 
taxation of property beyond the jurisdiction of the state, and that 
there was no relation between the capital invested and the num- 
ber of shares of the company owned in the state. Justice Field, 
speaking for the court, replied that the tax was not upon the 
shares, nor upon the property of the corporation, but a tax upon 



w (1880), 103 U. S. 344. 350. 26 L. Ed. 565. 
" (1874). 18 Wall. 206, 21 L. Ed. 888. 



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I20 CALIFORNIA LAW REVIEW 

the corporation, measured by a percentage upon the cash value 
of a certain proportional part of the shares, and that, although 
the rule was arbitrary, it was approximately just, and within the 
power of the legislature to adopt. He said: "The state may 
impose taxes upon the corporation as an entity existing under its 
laws, as well as upon the capital stock of the corporation or its 
separate corporate property. And the manner in which its value 
shall be assessed and the rate of taxation, however arbitrary or 
capricious, are mere matters of legislative discretion." 

The case of Gloucester Ferry Co. v. Pennsylvania** did not 
modify the rule of the Delaware Railroad Tax, when it announced 
unequivocally that interstate conmierce could not be taxed at all. 
Here the tax which the court refused to sustain was upon the 
entire capital stock of a foreign corporation on account of its 
property within the state. The land which the ferry company 
owned in Pennsylvania could of course be taxed, but the business 
of ferriage between states was wholly beyond the jurisdiction 
of Pennsylvania. Justice Field remarked: "However great her 
power, no legislation on her part can impose a tax on that por- 
tion of interstate commerce which is involved in the transporta- 
tion of persons and freight, whatever be the instrumentality by 
which it is carried on." 

The rule of the Delaware Railroad Tax Case, while sustained 
in subsequent cases, has also been greatly extended. In the State 
Railroad Tax Cases,*® and the Kentucky Railroad Tax Cases,'® the 
value of the road in question was ascertained by adding together 
the cash value of the bonds and stock of the company. In all 
these cases the tax was upon corporations of the state's own crea- 
tion, and the method of appraisement was not considered open to 
objection. In two other railroad cases,*^ the mileage rule of taxa- 
tion was again approved. Justice Brewer, for the court, said: 
"It is ordinarily true that when a railroad consists of a single 
continuous line, the value of one part is fairly estimated by tak- 
ing that part of the value of the entire road which is measured 



28 (1885), 114 U. S. 196, 29 L. Ed. 158, 5 Sup. Ct Rep. 826. 
2» (1876). 92 U. S. 575. 23 L. Ed. 663. 

80 (1885), 115 U. S. 321, 29 L. Ed. 414, 6 Sup. Ct. Rep. 57. 

81 Pittsburgh, C, C. & St. L. Ry. v. Backus (1894), 154 U. S. 421, 430. 
38 L. Ed. 1031, 14 Sup. Ct. Rep. 1114; Cleveland, C. C. & St. L. Ry. v. 
Backus (1894), 154 U. S. 439, 38 L. Ed. 1041, 14 Sup. Ct Rep. 1122. In 
these cases Justice Harlan gave a dissenting opinion, in which Justice 
Brown concurred. 



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by the proportion of the length of the particular part to that of 
the whole road. This mode of division has been recognized by 
this court several times as eminently fair." 

In two successive cases from Massachusetts and one from 
Indiana,*^ the Supreme Court sustained the taxation of the West- 
em Union Telegraph Company under the mileage rule of appor- 
tionment, that is, by taking as a basis of assessment such portion 
of the capital stock of the company as equaled the ratio of the 
company's mileage within the state to its total mileage. And so, 
as to railroad, telegraph and sleeping-car companies, the rule, as 
stated in a later case,'* is "that their property in the several states 
through which their lines of business extends may be valued as 
a unit for the purpose of taxation, taking into consideration 
the uses to which it was put and all the elements making up 
aggregate value, and that a proportion of the whole fairly and 
properly ascertained might be taxed by the particular state, with- 
out violating any federal restriction. [Citing the telegraph cases 
just reviewed]. The valuation was, thus, not confined to the 
wires, poles and instruments of the telegraph company; or the 
roadbed, ties, rails and spikes of the railroad company; or the 
cars of the sleeping-car company; but included the proportionate 
part of the value resulting from the combination of the means by 
which the business was carried on, a value existing to an appre- 
ciable extent throughout the entire domain of operation. And it 
has been decided that a proper mode of ascertaining the assessable 
value of so much of the whole property as is situated in a par- 
ticular state is, in the case of railroads, to take that part of the 
value of the entire road which is measured by the proportion of 
its length therein to the length of the whole (Pittsburgh, etc. Rail- 
way V. Backus, 154 U. S. 421) ; or taking as the basis of assess- 
ment such proportion of the capital stock of a sleeping-car com- 
pany as the ntunber of miles of railroad over which its cars are 
run in a particular state bears to the whole number of miles 
traversed by them in that and other states (Pullman's Palace 



»« Western Union Tel. Co. v. Massachusetts (1888), 125 U. S. 530, 
31 L. Ed. 790, 8 Sup. Ct. Rep. 961 ; Massachusetts v. Western Union Tel. 
Co. (1891). 141 U. S. 40. 35 L. Ed. 628, 11 Sup. Ct. Rep. 889; (Field and 
Harlan, J J., dissented in this case, but without writing an opinion) ; West- 
cm Union Tel. Co. v. Taggart (1896). 163 U. S. 1, 41 L. Ed. 49, 16 Sup. 
Ct Rep. 1054. 

"Adams Express Co. v. Ohio State Auditor (1897). 165 U. S. 194, 
220, 41 L. Ed. 683, 17 Sup. Ct. Rep. 305. 



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Car Co. V. Pennsylvania, 141 U. S. 18) ; or such a proportion 
of the whole value of the capital stock of a telegraph company 
as the length of its lines within a state bears to the length of all its 
lines everywhere, deducting a sum equal to the value of its real 
estate and machinery subject to local taxation within the state 
(Western Union Tel. Co. v. Taggart, 163 U. S)." 

The next extension of the doctrine was to express companies. 
On the face of it, at least, the step forward was considerable, for 
the actual tangible property of the express company within the 
state was relatively small, whereas the value of the entire concern 
measured by the amount of business done was very great. In 
the case applying the unit principle of valuation to express com- 
panies,^* the court said: "Doubtless there is a distinction between 
the property of railroad and telegraph companies and that of 
express companies. The physical unity existing in the former is 
lacking in the latter; but there is the same unity in the use of 
the entire property for the specific purpose, and there are the 
same elements of value arising from such use. A strong dis- 
sent was made by Justices White, Field, Harlan and Brown. 
The opinion filed by Justice White on behalf of those dissenting 
insisted that there was no power in the state to tax property out- 
side of its jurisdiction, which in effect it had done in this case 
under the theory of a homogeneous unit; and that the mere fact 
that the same owner has property in different states which con- 
tribute to his earnings does not create such a unity for the pur- 
poses of taxation as to make the property located in one state 
taxable in another. It was asked, why could not the same rule 
be applied to a corporation or partnership engaged in the dry 
goods business, or any other business having branches in different 
states, on the theory that there was a tmity of earnings between 
the agencies in all the establishments. This would warrant any 
state, in which one of the branches was established, in taxing the 
whole on the theory of unity." 

The taxation of the receipts of a corporation engaged in 
interstate business has occassioned not a little difficulty. The State 
Freight Tax Case,** held that a state tax directly upon and mea- 
sured by the amount of freight carried was, as to interstate 



»* Adams Express Co. v. Ohio State Auditor (1897), 165 U. S. 
41 L. Ed. 683, 17 Sup. Ct. Rep. 305. 
**Judson on Taxation, 284n. 
»• (1872), 15 Wall. 232, 21 L. Ed. 146. 



194, 



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FIELD ON CONSTITUTIONAL LAW 123 

freight, a tax on interstate commerce and as such void. But in 
State Tax on Railway Gross Receipts,'^ a tax on the gross receipts 
of railways, including receipts from interstate commerce, was 
upheld, the amount of such receipts being assessed in proportion 
to the mileage in the state. The authority of this case was shaken 
in Fargo v. Michigan,*® and was expressly disapproved in Phila- 
delphia & Southern Mail Steamship Co. v. Pennsylvania.*' Then 
came the case of Maine v. Grand Trunk Ry.,*^ in which the 
opinion was written by Justice Field, and was concurred in by 
Chief Justice Fuller and by Justices Gray, Blatchford and Brewer. 
Four judges dissented, Justices Bradley, Harlan, Lamar and 
Brown. The dissenting opinion was written by Justice Bradley, 
being his last reported opinion. The statute of Maine required 
that every corporation, person or association operating a railroad 
in the state should pay an annual excise tax for the privilege of 
exercising its franchise in the state. The amotmt of the tax 
was to be ascertained as follows: the gross receipts were to be 
divided by the ntunber of miles of road operated, and the re- 
sulting average, multiplied by the number of miles operated within 
the state, was to be the basis of the taxation. The tax was sus- 
tained on the ground that it was an excise tax for the privilege 
of exercising its franchises within the state of Maine; that it 
might be enacted, since the state had the right to exclude the 
corporation, if a foreign one, or refuse it a franchise, if a domes- 
tic one; and, further, that it was not a regulation of commerce 
because it was not a direct tax on the receipts. The minority could 
not regard it otherwise than as a tax on gross receipts, for inter- 
state as well as intrastate business, and, therefore, as in conflict 
with the decisions which we have reviewed above. 

While the case of Maine v. Grand Trunk Ry. has been approved, 
it has also met with adverse criticism.*^ Professor Beale,** says 



«7 (1872). 15 Wall. 284. 21 L. Ed. 164. 

»« (1887). 121 U. S. 230, 30 L. Ed. 888, 7 Sup. Ct. Rep. 857. 

w (1887), 122 U. S. 326, 30 L. Ed. 1200, 7 Sup. Ct. Rep. 1118. This 
case was in turn followed by Ratterman v. Western Union Tel. Co. (1888). 
127 U. S. 411, 32 L. Ed. 229, 8 Sup. Ct. Rep. 1127, in which it was at- 
tempted to tax the gross receipts of an interstate telegraph company; and 
it has been approved later: Norfolk & Western R. v. Pennsylvania (1890), 
136 U. S. 114, 34 L. Ed. 394, 10 Sup. Ct. Rep. 958. 

*o (1891), 142 U. S. 217, 35 L. Ed. 994, 12 Sup. Ct. Rep. 121. 

*i Cooke, Commerce Clause of the Federal Constitution, 149. 

♦^Beale, The Taxation of Foreign Corporations. 17 Harvard Law 
Review, 248, 262. 



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that the ground seemingly taken by the majority, that the tax 
might be supported as an excise tax for the privilege of coming 
into the state, is certainly unsound; for later as well as earlier 
cases agree that a state cannot exclude from its territory a cor- 
poration or an individual engaged in interstate commerce or in 
the service of the national government. Justice Field, of course, 
recognized this, for he himself said: "Only two exceptions or 
qualifications have been attached to it [exclusion of foreign cor- 
porations] in all the numerous adjudications in which the subject 
has been considered, since the judgment of this court was 
annotmced more than half a century ago in Bank of Augusta v. 
Earle, 13 Pet. 519. One of these qualifications is that the state 
cannot exclude from its limits a corporation engaged in inter- 
state or foreign commerce, established by the decision in Pensa- 
cola Telegraph Co. v. Western Union Telegraph Co,, 96 U. S. 12. 
The other limitation of the power of the state is, where the cor- 
poration is in the employ of the general government, an obvious 
exception, first stated, we think, by the late Mr. Justice Bradley, 
in Stockton v. Baltimore & New York Railroad, 32 Fed. 9, 14."** 
Professor Beale suggests that some more tenable ground must 
be found, which he thinks may be in that rule, which we have 
already discussed, where a tax had been laid, as upon tel^^ph 
companies, for the privilege of carrying on their business, grad- 
uated upon the amotmt of property in miles and its value, and 
exempting them from all other taxation. Such a mileage basis 
for apportioning a tax is well established, as we have seen. The 
authority of the case of Maine v. Grand Trunk Ry. has been 
sustained by the Supreme Qjurt, and the meaning of its holding 
explained, as may be seen from the following extract of an 
opinion by Mr. Justice Holmes:** 

The lines of railroads concerned are wholly within the 
state, but they connect with other lines, and a part, in some 
instances much the larger part, of their gross receipts is 
derived from the carriage of passengers and freight coming 
from, or destined to, points without the state. In view of 
this portion of their business, the railroads contend that the 
case is governed by Philadelphia & Southern Mail Steamship 
Co. V. Pennsylvania, 122 U. S. 326. The counsel for the 



"Horn Silver Mining Co. v. New York (1892), 143 U. S. 305, 314. 
36 L. Ed. 164, 12 Sup. Ct Rep. 403. 

** Galveston, H. & S. A. Ry. v. Texas (1908), 210 U. S. 217, 224, 
52 L. Ed. 1031. 28 Sup. Ct Rep. 63a 



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state rely upon Maine v. Grand Trunk Ry. Co., 142 U. S. 217, 
and maintain, if necessary, that the latter overrules the earlier 

CAS6. 

In Philadelphia & Southern Mail S. S. Co. v. Pennsyl- 
vania, 122 U. S. 326, it was decided that a tax upon the gross 
receipts of a steamship corporation of the state, when such 
receipts were derived from commerce between the states and 
with foreign countries, was unconstitutional. We regard 
this decision as unshaken and as stating established law. It 

cites the earlier cases to the same eflFect In Maine v. 

Grand Trunk Ry. Co., 142 U. S. 217, the authority of the 
Philadelphia Steamship Company Case was accepted without 
question, and the decision was justified by the majority as 
not in any way qualifying or impairing it. The validity of 
the distinction was what divided the court 

Since the commercial value of property consists in the 
expectation of income from it, and since taxes ultimately, at 
least in the long run, come out of income, obviously taxes 
called taxes on property and those called taxes on income 
or receipts tend to run into each other somewhat as fair 
value and anticipated profits run into each other in the law 
of damages. The difficulty of distinguishing them became 
greater when it was decided, not without much debate and 
difference of opinion, that interstate carriers' property might 
be taxed as a going concern. In Wisconsin & Michigan Ry. 
Co. V. Powers, 191 U. S. 379, the measure of property by 
income purported only to be prima facie valid. But the 
extreme case came earlier. In Maine v. Grand Trunk Ry. 
Co., 142 U. S. 217, "an unnual excise tax for the privilege of 
exercising its franchise," was levied upon every one operat- 
ing a railroad in the state, fixed by percentages, varying up 
to a certain limit, upon the average gross receipts per mile 
multiplied by the number of miles within the state when the 
road extended outside. This seems at first sight a reac- 
tion from the Philadelphia & Southern Mail Steamship Com- 
pany Case. But it may not have been. The estimated gross 
receipts per mile may be said to have been made a measure 
of the value of the property per mile. That the eflFort of the 
state was to reach that value and not to fasten on the receipts 
from transportation as such was shown by the fact that the 
scheme of the state was to establish a system. The buildings 
of the railroad and its lands and fixtures outside of its right 
of way were to be taxed locally, as other property was taxed, 
and this excise with the local tax were to be in lieu of all 
taxes. The language shows that the local tax was not 
expected to include the additional value gained by the prop- 
erty being part of a going concern. That idea came in later. 
The excise was an attempt to reach that additional value. 
The two taxes together may be called a commutation tax. 



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The authority of Congress over the subject of commerce by 
the telegraph with foreign countries or among the states is 
supreme, whenever Congress chooses to exercise its power; and 
the states can impose no impediment thereto. An Indiana statute 
required that a telegraphic message must be delivered to the 
person addressed if residing within a certain distance of the 
receiving office. After reviewing the two cases" in which the 
Supreme Court had already considered the respective powers of 
Congress and the states over intercourse by the telegraph, Justice 
Field,** in holding the Indiana statute void in requiring the 
delivery of a message to a person addressed in another state, 
said: 

In these case^ the supreme authority of Congress over the 
subject of commerce by the telegraph with foreign countries 
or among the states is affirmed, whenever that body chooses 
to exert its power; and it is also held that the states can 
impose no impediments to the freedom of that commerce. 
In conformity with these views the attempted regulation by 
Indiana of the mode in which messages sent by telegraphic 
companies doing business within her limits shall be delivered 
in other states cannot be upheld. It is an impediment to 
the freedom of that form of interstate commerce, which is as 
much beyond the power of Indiana to interpose, as the impo- 
sition of a tax by the state of Texas upon every message 
transmitted by a telegraph company within her limits to 
other states was beyond her power. 
In a later case,*^ however, a statute of Georgia imposing 
liability on a telegraph company for failure to transmit and deliver 
with due diligence, was upheld, as to a despatch from a point 
without to a point within the state. Justice Peckham said : "While 
it is vitally important that commerce between the states should 
be unembarrassed by • vexatious state regulations regarding it, 
yet on the other hand there are many occasions where the police 
power of the state can be properly exercised to insure a faithful 
and prompt performance of duty within the limits of the state 
upon the part of those who arc engaged in interstate conmierce. 
We think the statute in question is one of that class, and in the 



*5Pensacola Tel. Co. v. Western Union Tel. Co. (1878), 96 U. S. 1, 
24 L. Ed. 708; Telegraph Co. v. Texas (1882), 105 U. S. 460. 26 L. Ed. 1067. 

♦8 Western Union Tel. Co. v. Pendleton (1887), 122 U. S. 347, 30 L. Ed. 
1187. 7 Sup. Ct. Rep. 1126. 

*7 Western Union Tel. Co. v. James (1896), 162 U. S. 650, 40 L. Ed. 
1105, 16 Sup. Ct. Rep. 934. 



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absence of any legislation by Congress the statute is a valid exer- 
cise of the power of the state over the subject Justices Shiras 
and White dissented on the ground that the decision was in con- 
flict with Western Union Tel. Co. v. Pendleton. There is cer- 
tainly a distinction between regulating the delivery of a telegram 
within a state and regulating the delivery of a telegram with- 
out the state; but it is still a question whether the former as well 
as the latter is not an interference with interstate commerce.*® 

Jusice Field's dissenting opinion in the case of O'Neil v. Ver- 
mont*' should be noted. O'Neil was convicted of selling liquor 
in Vermont contrary to statute. He was a wholesale and retail 
dealer in wines and liquors at Whitehall, N. Y. He received 
orders by mail from persons residing in Rutland, Vt. In reply 
to such orders, liquors were sent C. O. D. to the purchasers in 
Vermont. The majority of the court held that no question of 
interference with the commerce clause had been taken in the state 
court, and that no federal question was presented and that the 
Supreme Court had no jurisdiction. Justice Field, in a character- 
istic opinion, dissented on several grounds. On the question of 
interference with tlie commerce clause, he spoke as follows: 

I assume for this case as correct the position of the 
majority of this court and of the supreme court of Vermont, 
that the sales were only initiated in New York, and were 
there merely executory contracts, and were not consunmiated 
until delivery of the goods to the purchaser in Vermont. As 
such they were transactions of interstate commerce which the 
latter state could not prevent, and for which she could not 
impose any penalty upon the defendant, though she might 
place such restrictions upon the disposition of the liquor, as 
the safety and health of the community might require, after 
it was brought within her limits, and had become part of the 
general .property there. Against the proceedings resulting 
in the penalty inflicted, the defendant invoked — and in my 
judgment was entitled to receive — ^protection under the clause 
of the Constitution of the United States vesting in Congress 
the exclusive power to regulate commerce among the states. 
The refusal of the state court to aflFord the protection is suf- 
ficient ground for this court to take jurisdiction to review the 
judgment of that court, and I dissent from my associates in 
their declining to take such jurisdiction. 

A state may tax all property within its jurisdiction. The 



*® Cooke, Commerce Clause of the Federal Constitution, 242. 

« (1892), 144 U. S. 323, 342, 36 L. Ed. 450. 12 Sup. Ct Rep. 693. 



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power to regulate interstate commerce is granted to Congress in 
terms as absolute as is the power to regulate foreign commerce. 
No state can lay any restrictions upon interstate transportation. 
When goods are held in a state for any other purpose than for 
transportation, the transit has ceased, and the goods are subject 
to state taxation. The adjustment of these several principles in 
concrete cases has given some difficulty. In Brown v. Houston*® 
it was held that coal from another state, unsold, and for sale 
upon the barges upon which it had been brought, was taxable 
by the state. Later the emphasis came to be placed upon the abso- 
lute freedom of interstate commerce,*^^ and the court was urged 
to overrule Brown v. Houston on the ground that it had been 
discredited by the later cases. The subject was brought to a 
head in Pittsburg & Southern Coal Co. v. Bates,** where coal, 
which had been brought down the river from Pittsburgh, was 
afloat at Baton Rouge in the original barges in which it had been 
shipped from Pennsylvania. The decision in Brown v. Houston 
was reaffirmed. Justice Field saying: "The coal in this case, as in 
that, still belongs to the original owners in Pennsylvania, but is 
brought on the navigable waters of the United States in boats 
and barges to Louisiana for purposes of sale, and is subject to 
taxation and sale as any other property of the citizens of the 
United States is subject when it becomes incorporated into the 
bulk of the property of the country, unless there be some special 
exemption set forth why it should not be thus taxed and sold, of 
which there is none here." 



Berkeley, California. 



William Carey Jones, 



»• (1885). 114 U. S. 622, 29 L. Ed. 257, 5 Sup, Ct Rep. 1091. 

51 Bowman v. Chicago & N. W. Ry. (1888), 125 U. S. 465, 31 L. Ed. 
700. 8 Sup Ct. Rep. 689; Ldsy v. Hardin (1890), 135 U. S. 100, 34 L. Ed. 
128, 10 Sup. Ct. Rep. 681. 

w (1895), 156 U. S. 577, 39 L. Ed. 538, 15 Sup. Ct Rep. 459. 



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Legislative Failure and Reform 



ONE of the most disturbing phenomena to the student of 
government is the modern decay of the power and reputa- 
tion of legislatures. The evidence of decline is wide-spread. 
It is true of the British House of Commons no less than of the 
American Congress, of the French Chamber of Deputies as of 
American state legislatures. The general complaint is that the 
quality of representatives chosen has lowered, that purely local 
interests determine the votes of members, and that executive power 
has everywhere grown at the expense of the legislature. 

In American state government the diminution of l^slative 
power has been going on for many years. It began with the imposi- 
tion of constitutional restraints upon the legislature's action, and 
particularly with the prohibition against special laws. Drafters 
and amenders of state constitutions have proceeded further and 
further in creating new limitations, until now the typical Ameri- 
can state legislature finds its freedom curtailed in a great variety 
of ways. As field after field of legislation passes, by constitutional 
restriction, beyond the jurisdiction of the legislature, the neces- 
sity arises of securing reform or added legislation in these fields 
by further amendment of the constitution and results in the writing 
into the organic law of the state of what are, in eflFect, merely 
statutes. The Constitution of California in its present form con- 
tains the entire law governing the initiation of legislation, amount- 
ing to over two thousand five hundred words ;^ the law for the 
framing of freeholders' charters in counties, three thousand words ;* 
the law for the framing of freeholders' city charters, two thousand 
five hundred words ;' the law organizing and defining the powers of 
the State Railroad Commission, one thousand eight hundred 
words.* Such laws are placed beyond the competence of the legis- 
lature to amend, and every necessary modification can only be 
accomplished by further constitutional amendments. Such a sit- 



^Art. IV, § 1. 
»Art. XI, § 7^. 
»Art. XI, § 2a 
*Art. XI, §§ 22, 23. 



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uation defeats the very purpose of an organic law and destroys the 
distinction between constitutional law and statute law.* 

The adoption by many states of the initiative and the referen- 
dum still further reduces the position of the legislature, and has 
even created the assumption ,in many minds that representative 
legislative bodies are superfluous. The adoption of a referendiun 
provision as a safeguard against injudicious or unpopular legisla- 
tion would logically call for the removal of constitutional prohibi- 
tions on the legislature formerly imposed for the same end, but so 
far as I know, no movement in this direction has begun. 

But the most striking exhibition of legislative decline, both in 
the nation and in the American states, is seen in its subordination 
to the chief executive. The old "doctrine of separation of powers," 
like so many other political formulas to which the American mind 
tenaciously holds, is completely fictitious when tested by the realities 
of our government. The executive no longer simply administers; 
he is held responsible by state and nation for the legislation enacted 
during his administration. It is not nierely a matter of his use of 
the veto; it is rather a question of his power of initiation and 
direction of legislation, and both at Washington and at our state 
Capitols the really significant projects of law are embodied in what 
we call "administration measures," which originate with the execu- 
tive and have his active support and solicitude. Mr. Taft, at the 
commencement of his administration, attempted to stand upon the 
old theory that presidential dictation to Congress is an unwar- 
ranted interference with congressional independence, but his atti- 
tude, which was quite correct theoretically, greatly irritated the 
nation, and established his reputation as a weak executive. On the 
other hand, the great achievements by the governors of many 
states in the last fifteen years, from Governor Hughes of New 
York to Governor Johnson of California, have been due to the 
leadership of these men in the legislature and their capacity to 
secure the enactment of necessary reforms into law. 

There is little doubt that all of these changes, the limitation of 
legislative ppwer by constitutional amendment, the adoption of the 
initiative and referendum, the growth of gubernatorial domination 
represent real accomplishments in the process of our political 
development, and that they have transformed our state governments 
decidedly for the better. They have all developed in response to a 

B Some Tendencies in Constitution Making, 2 California Law Review, 203. 



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determination of the people to protect the public interest against 
private rapacity, and they are coincident with a most encouraging 
development of state activities. Nevertheless their result has been 
to reduce the quality and character of our state legislatures and to 
disturb confidence in the doctrine of representative government. 
That doctrine, as expounded for example in the classic pages of 
Walter Bagehot or John Stuart Mill, is one of the noblest expres- 
sions of political judgment. It rests upon the faith that voters are 
capable of choosing as their representatives men somewhat above 
the level of their own class in sagacity and public spirit, and that 
while popular judgment may err as respects measures, in the long 
run, it is correct as to men ; that men elected to the position of law- 
makers act under an increased sense of public responsibility, that 
discussion, the meeting of opposing points of view, is vital to the 
law-making process; that a proper recognition of the interests of 
all classes of the community is only gained by conference in a 
body representative of all these classes. 

The earlier theory current in the time of our revolutionary 
framers of government held further that the legislature would be 
an effective and wholesome restraint against the dangers of execu- 
tive power. In countries with "parliamentary" or "ministeriar* 
government, where the executive is in effect a committee of the 
legislature, executive responsibility is theoretically secured by the 
constant necessity of rendering accotmt to the legislative body of 
all matters, both of administration and politics; but the American 
system of "presidential" government separates the executive from 
the legislature and makes the executive irresponsible except to the 
people at periodical elections. Only in certain specific matters, as 
for example the use of pardoning power, do our state constitu- 
tions require the governor to give a report to the legislature of his 
performance, and in these cases there is no reversal of his action. 

The up-shot of the matter is that while the moral character of 
the men who make up our legislatures has improved in the last 
fifteen years, so that these bodies are no longer dominated either by 
politicians of the old stripe, or by mere creatures of "big business" 
and "bad business," our most representative citizens are coming to 
feel that the office of legislator is devoid of opportunity and dig- 
nity. The legislature which assembles in Sacramento as this article 
goes to press will contain a disappointingly low proportion of men 
who have had the advantage of previous experience in that body. 

It is undeniable that much of the decline in public esteem and 



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of the failure of state legislatures to do their tasks effectively rests 
upon themselves. Yet one of the most serious defects of a legis- 
lator's position is beyond his control, and results from the vicious 
American theory that the members of legislative bodies must in all 
cases be actual residents of the districts they represent. This is 
one of those numerous points where a people who pride themselves 
upon their practical sense have bound themselves ri^dly to an 
unwholesome theory. No legislative body so far as I know outside 
of America, and American dependencies like the Philippines, 
where the same unfortunate notion has been engrafted, thus 
destroys the freedom of the legislator. The effect is not only to 
render it impossible for the people freely to choose the best and 
most representative individuals to be found in the state, but binds 
the political career of a man in a legislature to the prejudices of a 
majority of his immediate constituents. A member of the legisla- 
ture who finds himself conscientiously at variance with the wishes 
of the majority of the people who have elected him, has three 
courses open; he may yield his own judgment and conscience to 
theirs, abandon political life, or change his home. The first alterna- 
tive is the one almost invariably chosen with the result that a 
member subordinates what he may know to be the interests of the 
state to the local interests of the district that chooses him. He 
sacrifices the esteem and confidence of the people of the state as a 
whole in order that he may retain the political support of the 
voters of his own district. This situation with all the unfortunate 
results that have grown out of it, lies at the root of the lack of 
public confidence in members of legislatures and at the bottom of 
the general confidence felt in a state governor. For he alone of all 
the men participating in the enactment of law can afford to ignore 
the petty interests of certain localities and can fairly claim to put the 
interests of the state as a whole above those of any locality. This 
position as the exponent and representative of "all the people" is 
the real explanation of the source of presidential and gubernatorial 
power, and of the relative weakness of Congress and the state 
legislatures. 

But legislatures themselves are wholly responsible for their 
failure to control the volume of projects of law and to limit tEe 
exercise of their august power to matters deserving statutory enact- 
ment. Nothing has gone further to destroy the position of state 
legislatures than the ridiculous profusion with which th^ have 



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permitted the unrestricted introduction and passage of bills. The Cal- 
ifornia legislature of 191 1 saw introduced into the Assembly 1588 
bills and into the Senate 1290, a total of 2878 projects of law. Of this 
number of bills 753 actually became laws or amendments to the 
Codes. This was considered to be an unprecedented and amazing li- 
cense of the legislative power, but it was exceeded by the performance 
of the legislature of 1915, which saw introduced a total of 3061"* 
bills, constitutional amendments and resolutions, over a thousand 
of which passed the legislature and 771 of which became laws.* 
Such practice as this defeats the very purpose of legislative bodies 
and encourages the dangerous inference that legislation may be an 
individual or personal function. It produces a demoralization of the 
legislative session in which anything is possible, and frames a 
spectacle which destroys confidence. It justifies Mr. Roosevelt's 
condenmation expressed in the Outlook in 1913 that "state legisla- 
tures simply spawn bills by the gross like female shad." Legisla- 
tures must take steps to completely reform their procedure as the 
first step to do their task well and to regain pubUc regard. Classical 
historians inform us that in the Greek state of Locri there was a 
rule that whoever proposed a new law should do so with a rope 
around his neck, and if his proposal was rejected he should be 
strangled on the spot. This summary provision of the Locrian 
constitution may at least serve to warn our legislatures that the law 



••Joint Final Calendar of Legislative Business, Cal. Legislature, 1915. 

*''Our legislatures are for the most part limited to short sessions and 
the terms of the members of the House do not as a rule cover more than 
one session. Generally, an overwhelming majority of the House of Repre- 
sentatives are first-termers, and without legislative experience. The same 
thing is often true of the Senate. 

"And yet, legislatures so composed, add something like 25,000 pages to 
our statute books each year. In Massachusetts this year not less than 2,500 
bills were introduced. In Pennsylvania, 2,100; in Wisconsin, 1,200; and in 
the State of Washington, 1,200. 

"In 1911 the Session Laws of California was a book of 2,000 printed 
pages; the Sessions Laws of Connecticut, 360 pages; Idaho, 810 pages; 
Indiana, 705 pages ; Maine, 829 pages ; Massachusetts 1,100 pages ; Midiigan, 
533 pages; Missouri, 451 pages; New Jersey, 834 pages. 

"The Session Laws of Kansas for 1913 is a book of 594 pages and 
contains 376 laws and resolutions. Excluding appropriation bills, 36 
important new laws were passed. The rest were either local acts, amend- 
ments, or were trivial in their nature. The last Kansas legislature was in 
session 49 days or parts of days, consequently something like 7 laws passed 
both Houses each day. 

"It is hardly possible for a member to read 7 enactments a day, and it 
is an impossibility for him to comprehend and understand them." 

— Governor George H. Hodges of Kansas, in address at Colorado 
Springs before the Conference of Governors in 1913. 



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proposing and enacting power must make its sanctity respected or 
the legislature itself will be imperiled. 

The legislatures not only defeat their purpose by multiplicity 
of bills, but they render good legislation impossible by the vol- 
uminous character of the statutes themselves. Every consideration 
recommends that a law should be concise, brief and exact. The 
great legislative enactments from Roman times down are no less 
marvelous for their conciseness than for their accuracy. No bill 
is in shape for enactment until it has been hammered into the 
smallest possible compass. Nothing should appear in a law that is 
not an essential to its interpretation and enforcement. This is a 
commonplace of political science and yet some of our laws defy 
mastery or comprehension by their very length. The last ballot 
law enacted by the state legislature, which should be understood 
by every voter and must be understood by every polling official, 
contained over thirty-six thousand words. 

In continental jurisprudence a clear distinction is drawn 
between a "law" {lot) which embodies the essential purpose and 
policy and which is a parliamentary enactment, and subordinate 
measures designed simply to carry out the provisions of the law and 
which may require modification from time to time. These "ordi- 
nances" (decrets and arretSs) in France or European governments 
generally are the work of the executive, duly authorized to perform 
this function. There is a certain limited development of the ordinance 
power in our federal and state governments. Congress frequently 
entrusts such power to the president, and state boards such as the 
Civil Service Board or the Board of Health are authorized to 
frame regulations having the force of laws. If our statutes are to 
enjoy any permanency and escape that constant tinkering which 
destroys their sanctity, our legislatures must find means generally 
to relieve themselves of burdensome, trivial and minor details. Only 
so may our statute law be reduced to scientific and comprehensible 
proportions. 

The most radical proposal for the reconstitution of state legis- 
latures is to adopt for state government the "commission form," 
concentrating both the executive and legislative powers of the 
state in a small commission after the manner of government in 
certain American cities. In discussing this proposition we do not 
need to consider the defects of commission organization for admin- 
istrative work, although these defects are real and apparent, for 



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we are not concerned with the operation of commission government 
as an executive. The objection to commission government on its 
legislative side, which is all we have here to consider, is, that a 
commission is too small a body to fulfill the demands of representa- 
tive government. This is even true of the commission government 
of large cities. Five men chosen at large do not form a representa- 
tive legislative or policy-deciding body for a city of a quarter of a 
million or even of a hundred thousand souls, and no such body 
could pretend to represent the varied interests of a state. The 
proposition to concentrate the legislative power in a commission is 
akin to that to make of the legislature a body of experts. There is 
a large place and a great need for the expert in legislation, but his 
proper place is in the initial drafting and shaping of laws, not in 
their final enactment. The final enactment of laws in a democracy 
is essentially a popular act, and under representative government 
is discharged by representatives from all classes of the people. 
Legislation by experts might for a while give us carefully framed 
and in a measure judicious laws, but we would not have represent- 
tative government. 

To entrust the legislative power to a small body of experts is to 
entirely disregard the historic character of parliaments, which have 
always contained bodies of laymen chosen from one or several 
classes of the people with the power to sit in legislative judgment 
upon the achievements and performance of the government, to vote 
the necessary grants of funds and impose taxation, and finally to 
settle the large questions of policy and give validity to laws. I hold 
strongly to the view that in a democracy a legislature must con- 
tain men chosen by all elements of society and capable of interpret- 
ing their needs and reflecting their views. In a democracy dis- 
franchisement of any class, even on grounds of illiteracy or 
dependence, is a dangerous expedient, because it creates a class of 
people outside the state and prepares a ground for attacks upon 
the state itself. 

I feel that proposals for commission legislatures or for legis- 
latures of experts arise from a confusion between those two broad 
branches of government which have been defined by Professor 
Goodnow as "politics" and "administration." Politics embraces 
legislation, the determination of public policies, the voting of funds 
and the imposition of taxation. This, in a representative govern- 
ment, is the function of the nation through its representatives, 
and must of necessity be sanctioned by laymen. In its last 



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analysis it is indisputably a lay responsibility. Administration 
has to do withe the carrying into effect of the policies decided 
by politics, the conduct of the state's business, the operation of its 
executive machinery. It may be entirely divorced from politics 
and from all partisan and political issues. Every considera- 
ation recommends that this side of government be entrusted to the 
best qualified. Here is the expert's place and here in the best gov- 
ernment he is considered indispensable. In other words, while 
politics and political power in a state, organized according to 
American ideals, should be based upon the most democratic 
principles, administration, in America no less than anywhere else 
in the world, should be as aristocratic as possible, using the term 
aristocratic not in the sense of having reference to any privil^^ed 
class but in the highest use of the word, — administration by the best 
qualified. I would reject absolutely then, as undemocratic and 
unrepresentative, all proposals for a commission legislature or an 
expert body of legislators, and in constituting a legislature I would 
hold to the simple principles that it must be large enough to satis- 
factorily represent all parts of the state and if possible all respect- 
able elements of society. A district entitled to representation should 
not be so large that a man standing there for election could not 
become acquainted with all its communities and be known by sight 
and voice to its inhabitants. Personal impression is indispensable 
to the proper choice of a representative to a legislative body. 

There is much less, however, that can be said in objection to 
the proposition now current in many states to reduce the state leg- 
islature to a single chamber. The bicameral system finds its most 
useful application in states with a federal system where it is desir- 
able to constitute one house upon the basis of population and the 
upper house, or senate, for the representation of the members them- 
selves of the federation. This device which was an American dis- 
covery and made possible the formation of our Union, has been 
repeatedly imitated, and the American senate finds its counterpart 
in the upper house of the German Empire, the Dominion of Canada, 
the Australian Commonwealth, the Union of South Africa, and 
Mexico and the Argentine. In other governments the upper house 
is usually a conservative body perpetuating the power of cer- 
tain privileged classes, or, resting upon a higher requirement of 
age or property qualification, is designed to act as a restraint 
upon the more popular branch of the legislature. But in the states 
of the American union there is little to justify the bicameral legis- 



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lature except the argument that it furnishes a double considera- 
tion of legislative proposals. We owe the existence of our state 
senates to the fact that in the colonial legislatures before the Revo- 
lution the governors generally had advisory councils which assisted 
them in executive responsibilities and advised upon the exercise of 
the veto, and these councils became in the early state constitutions 
•upper legislative houses, in four cases chosen by the lower house 
itself as the city aldermen were chosen by the municipal council 
of an English borough ; while seven states, anticipating the federal 
constitution, gave to their upper houses the name of "senate." 
Pennsylvania alone of the thirteen original states contented herself 
in the beginning with a single chamber. The immense influence 
of the federal pattern of government imposed itself, however, from 
the start upon state constitutions and bicameral state legisla- 
tures have prevailed, and for a century there has been no exception 
among the states of the American imion. 

In the federal countries to the north and the south of us, how- 
ever, the single chamber legislature is general. Under the federal 
constitution of Mexico, first adopted in 1823, each state (of which 
there are now twenty-seven) has its own legislature, and these leg- 
islatures consist of a single chamber. In the early history of Mex- 
ican state government an upper chamber or senate was frequently 
considered, but its creation generally postponed in the interests of 
economy. In the course of years, however, the unicameral system 
has thoroughly established itself and everjrwhere prevails. In spite 
of the faulty working of the Mexican constitutional system, there 
is much that the student of political science may learn from the 
conduct of Mexican state government. These state legislatures, or 
congresos, are small, usually consisting of from only nine to fif- 
teen members. The deputies are selected by districts and for terms 
that vary from one to four years. An alternate (suplente) is 
elected at the same time with the deputy and takes his place in case 
of death, retirement or absence. While the size and population of 
a Mexican state make bodies so small as the Mexican legislatures 
are, more nearly representative than would be the case in the 
American tmion, nevertheless the disadvantages of their small size 
are apparent. A body of nine to fifteen members is more easily 
controlled or dominated by executive authority than a legislature of 
greater numbers. It lacks the courage of a larger and more repre- 
sentative assembly. Its deliberations do not take on the character 
of public debate and its work tends to be dispatched in the manner 



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^ 



of a committee. While these and other arguments could be 
advanced for enlarging the membership of these legislatures, I 
doubt if any opinion in Mexico or among Mexican students of their 
government would champion the plan of two chambers. 

The provinces of the Dominion of Canada have likewise tended 
toward a single chamber system. Two of them, Quebec and Nova 
Scotia, still retain an upper house. The others, either by change 
of their original institutions or, on their first adoption of provincial 
constitutions, have settled upon the unicameral system.'' Canadians 
generally seem to have decided that the single-chamber pro- 
vincial legislature is not only more economical but more responsible 
and altogether more satisfactory than a bicameral legislature. It 
must be said, however, in regard to their law-making process, that 
as is usual under the pariiamentary system of government, most 
legislation is introduced by the ministry, and in this manner careful 
preliminary study of bills and a double deliberation in coimcil of 
ministers and in pariiament is secured. 

As against the theory of the check of one house upon the other, 
the advocate of single chambers argues that this is not an unmixed 
advantage, as it frequently disposes one chamber to avoid respons- 
ibility or the tedium of close investigation by passing doubtful or 
ill-considered measures on to the other branch of the legislature, 
whereas in the closing days of the session the action of two houses 
seldom secures the careful consideration of any but the most 
important measures. 

There is less to recommend the dual organization of state legis- 
latures because of the fact that in American state government there 
has been little or no specialization of function between them. The 
natural division would be to accord to the lower house the origina- 
tion of appropriations and financial measures, while leaving to the 
senate the general determination of state policies and the review 



^ The following tabulated statement shows the size of the legislative 
bodies of those provinces of the Dominion of Canada which have the 
unicameral system. 

PROVINCE. LEGISLATURE. 

Alberta "Legislative Assembly" 56 

British Columbia... "Legislative Assembly" 42 

Manitoba "Legislative Assembly" 49 

New Brunswick "Legislative Assembly" 48 

Ontario "Provincial House of Representatives" 111 



Prince Edward 

Island 

Saskatchewan -. 



MEMBERS. TERM. 

? 

4 years 

5 " 
5 " 
4 " 



....**Legislative Assembly".. 
.-."Legislative Assembly".. 



30 
54 



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LEGISLATIVE FAILURE AND REFORM 



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and discussion of executive action; but so great is the attraction 
of the money-appropriating function that in the State of California, 
at least, the senate has secured the main control of appropriations, 
while the assembly, necessarily composed of younger and less 
experienced men, finds that even in financial matters it is relegated 
to a position of less consequence and less power. 

There are sound reasons for believing that American state leg- 
islatures would gain in responsibility, in attractiveness as fields of 
effort, as well as in mere economy, if they were reduced to a single 
chamber. It is nothing but the extreme conservatism of the Ameri- 
can disposition in dealing with established institutions that has pre- 
vented the trial of a single-chamber legislature. Sooner or later 
some American state will inaugurate this innovation, and the 
chances are in favor of its exhibiting superiority over the present 
dualism. 

There is room for great difference of opinion as to the proper 
size and method of choice of such a single chamber, but I am of 
the opinion that no single state legislative body should be smaller 
than the present California senate, which consists of forty mem- 
bers. Forty members is an almost ideal body for profitable and 
dignified public discussion. It is just about the size of the Ameri- 
can senate in the days of its greatest debates. On the other hand 
the imperial proportions of the State of California and the extra- 
ordinary variety of occupations and interests which its vast domain 
presents, recommend a single legislative body of the size of the 
present lower house, or eighty members. 

Four years is not too long a term for which to choose a legis- 
lative member, although the conservatism of a four-year term may 
be modified by electing half of the body every two years, and if 
this were done, in order that all districts might have the oppor- 
tunity of expressing their judgment at each election, it would per- 
haps be advisable to retain the senate districts as the basis for 
election, and accord to each one two members to be elected alter- 
nately every two years for a four-year term. 

Such a body should meet annually. Biennial meetings, or in 
some cases less frequent sessions, were adopted largely to check 
undue legislation, but the device has proved absolutely ineffective. 
An annual session not only permits the more timely consideration 
of legislation that is actually urgent, but makes it easier to defer 
partially considered measures until the following session. There is 



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I40 CALIFORNIA LAW REVIEW 

far less pressure upon a legislature which knows that it will con- 
vene again within the space of eight or nine months to rush through 
a vast number of hastily prepared and quite unconsidered statutes 
than is the case with a legislature one-half of which goes out of 
existence at the end of the session, and which will not reconvene 
for nearly two years. 

An American legislature, constituted of a single chamber might 
well adopt an institution which has proved its value in several 
countries, and is known as the "permanent deputation" or the 
"permanent conmiission." This institution appears to have origi- 
nated in Belgium and to have had an eariy origin in the practice of 
the Estates of the Low Countries. As constituted in modern Belgium 
the permanent deputation is a committee of six members chosen 
by each provincial council out of its membership. Between the ses- 
sions of the provincial council it plays an important part in pro- 
vincial administration. Its counterpart exists in a number of 
modem governments, including, rather singularly, Mexico, where 
the Federal Congress on adjournment of session elects a permanent 
deputation of seven senators and eight representatives, upon whom 
the Constitution and laws confer important powers. Each Mexican 
state also has a permanent deputation of the state congress. 

The uses of such a body in the State of California might be 
several. Chosen before the adjournment of each session by the 
legislature out of its own members, and composed of a number of 
men with the qualifications and the leisure to give continuous atten- 
tion to the affairs of the state, such a standing commission might 
be a permanent committee upon legislation, reviewing the action of 
the legislature at its past session and anticipating its action during 
the coming session. It might reconsider projects of law left unen- 
acted, and examine new projects sent in by members of the legis- 
lature for future consideration. The legislature might well accord 
to this deputation an unlimited prerogative of introducing at the 
opening of the session new bills, while at the same time restricting 
to a minimum the number of bills which a private member might 
introduce other than through the permanent commission. This 
would be one practicable way of limiting the unbridled license 
which overwhelms our legislature with projects of law, and which 
has been sufficiently commented upon. To it might also well be 
entrusted a considerable ordinance power, the power to frame sub- 
ordinate legislation consistent with statutes of the legislature and 



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designed to carry out the provisions of these statutes, which, upon 
receiving the approval of the governor, would have the force of 
law. This would relieve our laws of the immense mass of details 
which incumber them and would give a flexibility much to be 
desired. The legislative reference bureau established by the last 
legislature should be administered under this permanent com- 
mission. 

Such a permanent commission might also, in the absence of any 
"cabinet body" in state administration, form an advisory council to 
the governor, particularly with reference to the operation and exe- 
cution of the laws, and it might perform a service of immense value 
by close participation with the governor in the framing of what we 
call "administration measures." 

The old theory of the separation of powers is a sham, long dis- 
carded in actual practice, and the American people will gain in cer- 
tainty of effort if they fairly recognize the truth. The state gover- 
nor and the state legislature can not be disassociated in the enact- 
ment of legislation. Rather must they be drawn even more closely 
together. The public interest does not lie in the direction of reduc- 
ing the power and influence of the governor. He should on the 
contrary be made the actual head of the state's administrative sys- 
tem, and as long as the American preference runs as irresistibly as 
it does toward the establishment of strong men in office there will 
be no diminution in his power with the people or the people's repre- 
sentatives. But what is needed, is to restore vitality and dignity 
to the legislative branch, constituting it upon practical and not 
theoretical lines, and raising it to a position of constant and active 
participation in the government of the state. 

David P. Barrows, 
Berkeley, California. 



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The California Irrigation Right 



THE substantive principles of the irrigation laws of the sev- 
eral states and territories are embodied in leading judicial 
opinions which have established two lines of court decisions 
by which have been prescribed the two orders of water rights 
known as the California system and the Colorado system of irriga- 
tion law. The irrigation states are each identified with one or the 
other of the two systems, and their statutory regulations reiterate 
the theory of antecedent judicial opinions — differing, within the 
two groups, only in matters pertaining to details of legal procedure 
and methods of administration. An analysis of irrigation water 
rights entails, therefore, an historical examination of the judicial 
decisions which enunciated and established the prevailing principles 
of property in irrigation waters. Irrigation statutes are chiefly indi- 
cative of the popular and legislative recognition of juristic theories, 
and of the relative efficiency of different state governments in the 
administration of water rights. 

Priority Water Rights Upon the Public Domain. 

Upon the organization of the state government of California in 
1850, property in water for industrial purposes existed only as an 
extra-legal right defined by the regulations and customs of the 
miners who had established themselves upon the public lands. 
Privileges in the use of water for mining and irrigation which were 
then enjoyed, represented, ipso jure, only quasi-property rights, 
since they were founded upon local and informal authority to divert 
watefs for placer mining upon government lands which were not 
legally and formally open to "occupation and appropriation." The 
policy of non-interference, on the part of the federal government, 
made possible the private appropriation of lands and an expeditious 
use of adjacent streams which became customary. 

A legislative act of April 13, 1850, declared the common law of 
England to be the rule of decision generally in California, when 
not in conflict with the Constitution of the United States or the 






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THE CALIFORNIA IRRIGATION RIGHT 



143 



onstitution or laws of the state.^ But this act was not clear as to 
rhat should be included under the term "laws of the state." The 
odes of the mining districts were judicially supported and widely 
ecognized and administered, but they had not been acknowledged 
y statute. Moreover, these codes were cleariy in conflict with 
be common law with regard to water rights on inland streams, 
"he second legislature of California, in 1851, approached a defini- 
ion of the status of the local regulations when justices were 
uthorized to admit proof of "customs, usages, or regulations at the 
ar or diggings" in cases concerning mining claims, when such 
ustoms, etc., were not in conflict with the constitution or laws of 
be state. But this rule of evidence was not extended to higher 
ourts of original and appellate jurisdiction.^ In the Revenue Act 
f 1854 the legislature implied its acknowledgement of the validity 
f the diversion and non-riparian appropriation of water by pro- 
iding for a tax upon "canals, water-races, dams, or other works 
or mining purposes." During a period of five years the diversion 
f streams for industrial purposes increased rapidly, and the prac- 
Lce, being unchallenged, assumed the dignity of a right The order 
f the rights in the same stream invariably followed the locally 
ccepted doctrine of priority of appropriation, and the practice was 
^formally encouraged by both the federal and state governments.^ 
The question of priority of water rights first reached the Cali- 
omia courts in 1853.* This first case is of special interest, not as 
precedent, but because of the fact that in charging the jury the 

i"The Common Law of England, so far as it is not repugnant to or 
iconsistent with the Constitution of the United States, or the Constitution 
r laws of the State of California, shall be the rule of decision in all the 
:ourts of this State." Cal. Stats. 1850, p. 219. 

In the Civil Code of 1872 the right to acquire the use of water by appro- 
nation w s a "useful or beneficial purpose" (§ 1410-1411) was established, 
rovided however that the common-law rights of riparian owners be 
espected (§ 1422). This proviso was repealed in 1887 with the reservation 
lat rights already vested should not be disturbed. Cal. Stats. 1887, p. 114. 

* Civil Practice Act, April 29, 1851, Cal. Stats. 1851, p. 51. 

•'The Legislature has never directly adopted the local rules and cus- 
>ms — ^as a body, in whole, or in part — of the respective districts, nor has 
authorized the miners to adopt any. Neither has it prohibited their 
doption in the thousand instances where they have been established and 
riforced. By implication, it has recognized them of binding force." Yale, 
lining Gaims and Water Rights, p. 59. 

*Eddy V. Simpson (1853), 3 Cal. 249, 58 Am. Dec. 408. Suit was 
rought in the district court to recover damages for interference with an 
ileged water right claimed by virtue of prior appropriation of the waters of 
hady Creek, the water being used for mining purposes. The trial court 
jund for the plaintiff, but was not sustained by the Supreme Court and 
le cause was remanded for retrial. 



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144 CALIFORNIA LAW REVIEW 

trial judge strongly foreshadowed the doctrine which was to 
become the general rule of decisions in matters of water rights in 
the arid districts. The opinion of the judge was, in part as follows : 

"As a general principle, the party who first uses the water 
of a stream, is, by virtue of priority of occupation, entitled to 
hold the same. If a company or association of miners con- 
struct a ditch, to carry water from a running stream for min- 
ing or other purposes, and they are the first to use the water, 
locate and construct the ditch, they are legally entitled to the 
same as their property, to the extent of the capacity of the 
ditch to hold and convey water- For, if it appears that there 
is more water running in the stream than the ditch of the 
first party can hold and convey, then any other party may 
rightfully take and use the surplus, and it does not matter 
whether the excess of water be taken from a point above or 
below the dam of the first party."* 

A second point of interest in this case appears in the opinion 
of the Supreme Court in reversing the judgment of Judge Barbour, 
that is, the conservative attitude of the California judiciary toward 
precedent and their feeling of uncertainty — ^almost helplessness — in 
dealing with new economic conditions. In this opinion, we read 
the following: 

"The rule laid down by the court below, while it is a 
departure from all the rules governing this description of 
property, would be impracticable in its application and we 
think it much safer to adhere to known principles and well- 
settled law, so far as they can be made applicable to the novel 
questions growing out of the peculiar enterprises in which 
many of the people of this state are embarked.'/* 

The second case of importance, and that designated as the first 
of the line of opinions establishing the doctrine of appropriation, 
was Irwin v. Phillips.'' This case involved the rights of a canal 
owner and appropriator of water for mining purposes, as against 
a subsequent settler and appropriator upon lands from which the 
stream had been diverted. Judge Baldwin, counsel for the respon- 
dent, argued the case without reference to the common-law doc- 
trine of riparian rights, and made no attempt to apply a modifica- 

«The case was tried March 5, 1853, before Wm. T. Barbour, judge of 
the Tenth Judicial District of California; and so far as is known, to Judge 
Barbour belongs the distinction of having formulated the first judicial 
acknowledgment of the doctrine of appropriation in the United States. 
Eddy V. Simpson (1853), 3 Gal. 249. 250. 

• The opinion was delivered by Justice Wells, Justice Heydcnfeldt con- 
curring. Eddy V. Simpson (1853), 3 Cal. 249, 252. 

» (1855), 5 C:al. 140, 141, 63 Am. Dec. 113. 



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tion of that doctrine or to interpolate the laws of custom and neces- 
sity within the purport of the common law. He maintained that 
the policy of the government with respect to the mineral lands of 
the United States created a necessity for the initiation and applica- 
tion of new principles by the courts. He contended that this policy 
was sufficiently clear to create a right of individual appropriation, 
subject to such limitations 

"as may be necessary to give effect to two leading principles: 
First, the most productive working of the mines. Second, the 
interest, convenience, and profit of the greatest number. But 
these last principles are subservient to another principle, which 
is necessary to give effect to these primary principles ; and this 
principle is protection to labor and encouragement of it, which 
can only be given by allowing to mining claims and appropria- 
tions a right of property, with its incidents." 

The argument of Counsel Baldwin was adopted by the Supreme 
Court, in an opinion written by Justice Heydenfeldt and concurred 
in by Justice Murray. The opinion of the court is, in part, as 
follows : 

"Courts are bound to take notice of the political and social 
condition of the country, which they judicially rule. In this 
State the largest part of the territory consists of mineral lands, 
nearly the whole of which are the property of the public. No 
right or intent of disposition of these lands has been shown 
either by the United States or the State governments, and with 
the exception of certain State regulations, very limited in their 
character, a system has been permitted to grow up by the 
voluntary action and assent of the population, whose free and 
unrestrained occupation of the mineral region has been tacitly 
assented to by the one government, and heartily encouraged by 
the expressed legislative policy of the other. If there are, as 
must be admitted, many things connected with this system, 
which are crude and undigested and subject to fluctuation and 
dispute, there are still some which a universal sense of neces- 
sity and propriety has so firmly fixed as that they have come 
to be looked upon as having the force and effect of res judi- 
cata. Among these the most important are the rights of miners 
to be protected in the possession of their selected localities, 
and the rights of those who, by prior appropriation, have 
taken the waters from their natural beds, and by costly arti- 
ficial works have conducted them for miles over mountains 
and ravines, to supply the necessities of gold diggers, and 
without which the most important interests of the mineral 
region would remain without development. So fully recog- 
nized have become these rights, that without any specific legis- 
lation conferring, or confirming them, they are alluded to and 
spoken of in various acts of the Legislature in the same 



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146 CALIFORNIA LAW REVIEW 

manner as if they were rights which had been vested by the 
most distinct expression of the will of the law makers ; as for 
instance, in the Revenue Act, 'canals and water-races' are 
declared to be property subject to taxation, and this when 
there was none other in the State than such as were devoted 
to the use of mining.* This simply goes to prove what is the 
purpose of the argument, that however much the policy of the 
State, as indicated by her legislation, has conferred the privi- 
lege to work the mines, it has equally conferred the right to 
divert the streams from their natural channels, and as these 
two rights stand upon an equal footing, when they conflict, 
they must be decided by the fact of priority, upon the maxim 
of equity, qui prior est in tempore potior est in jure,, 

"The miner who selects a piece of ground to work, must 
take it as he finds it, subject to prior rights, which have an 
equal equity, on account of an equal recognition from the sov- 
ereign power. If it is upon a stream the waters of which have 
not been taken from their bed, they cannot be taken to his 
prejudice; but if they have been already diverted, and for as 
high and legitimate a purpose as the one he seeks to accom- 
plish, he has no right to complain, no right to interfere with 
the prior occupation of his neighbor, and must abide the dis- 
advantages of his own selection."* 

In this decision and opinion, a well defined position was taken 
in opposition to the maintenance of property rights in natural 
waters as known to the common law, though the common law was 
nominally the rule of decision in California prior to that time. The 
innovation was frankly based upon facts of physical conditions and 
necessities of social and economic relations resulting therefrom. 
It is noteworthy that this opinion unfolds the salient principles of 
the present-day irrigation water right, as confirmed by the doc- 
trine of priority of appropriation and beneficial use. The principles 
of B?ildwin and Heydenfeldt were not accepted, however, without 
contest. For thirteen years the judicial precedent stood without 
legislative sanction, and certain vested interests and juristic con- 
servatives waged a stubborn opposition in the courts of California 
until 1862.^** The doctrine of appropriation was not fully supported 



* Section 2, Art. IX, of the same act, provides for the assessment of 
the property of companies and associations. Among objects mentioned are 
"dam or dams, canal or canals, or other works for mining purposes." 

•Irwin V. Phillips (1855), 5 Cal. 140. 146, 63 Am. Dec 113. 

10 "There are two antagonistic interests in the state, each endeavoring 
to control the legislature, and to shape the legislation entirely in its own 
behalf, to the complete exclusion of the other. These are the riparian pro- 
prietors, who assert their common-law rights, and would exclude all other 
classes from the participation in the waters of the streams however abund- 



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by the United States Supreme Court until 1874.^^ Although this 
court did not even then pass directly upon the question, it became 
clear that water-rights controversies were to be decided in accord 
with the customs, laws, and decisions prevailing in the respective 
states and territories. This policy was confirmed by a decision in 
1890, in which the court said: "The local custom is set forth 
.... to have consisted in the recognition and acknowledgment of 
'the right to locate water rights, and to divert, appropriate and use 
the waters of flowing streams for purposes of irrigation, when 
such location, diversion and use does not conflict or interfere with 
rights vested and accrued prior thereto.' Thus, under the laws of 
Congress and the Territory (Dakota), and under the applicable 
custom, priority of possession gave priority of right."^* 

The final word in the recognition of the frontier doctrine of 
appropriation and of the authority of a state in its application to 
the use of irrigation waters was pronounced in 1907 by the United 
States Supreme Court, in Kansas v- Colorado.** The court asserted 
that 

"each State has full jurisdiction over the lands within its 
borders, including the beds of streams and other waters. It 
may determine for itself whether the common-law rule in 
respect to riparian rights or that doctrine which obtains in the 
arid regions of the West of the appropriation of waters for the 
purposes of irrigation shall control. Congress cannot enforce 
either rule upon any State." 

It should be borne in mind, in connection with the evolution of 
the arid-land water right, that up to 1856, questions of the use of 
water in California concerned only the mining industry; and the 
locus of water rights, with few exceptions, was confined to the 
mineral lands of the public domain not legally open to occupation 
and settlement. The newly developed property right in natural 



ant; and the communities of land owners away from the banks of the 
streams who deny any rights of the riparian proprietors, and claim a free, 
unrestricted access to and appropriation of all material streams, limited 
only by the extent of their own needs." Black's Pomeroy on Waters, p. 349. 
Sec also Crandall v. Woods (1857), 8 Gal. 136; McDonald v. Bear River 
Co. (1859), 13 Gal. 220; Logan v. Driscoll (1862), 19 Gal. 623. 

"Atchison v. Peterson (1872), 1 Mont. 561; Basey v. Gallagher (1874), 
87 U. S. 670. 22 L. Ed. 452; Jennison v. Kirk (1878), 98 U. S. 453, 25 L. 
Ed. 240. 

"Sturr V. Beck (1890), 133 U. S. 541, 33 L. Ed. 761, 10 Sup. Gt. 
Rep. 350. 

!• Kansas v. Golorado (1906), 206 U. S. 46, 93, 51 L. Ed. 956, 27 Sup. 
Gt Rep. 655. 



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148 CALIFORNIA LAW REVIEW 

waters was popularly assumed to be the special prerogative of 
miners, which distinction the legislature sought to establish by 
statute in 1854. 

Riparian Rights Upon Private Estates. 

The federal act of July 26, 1866," together with the judicial 
decisions noted above, clearly established the right to appropriate 
the use of water flowing upon the public lands in the state of Cali- 
fornia. The doctrine of priority of appropriation for beneficial 
use, irrespective of the common law, has since been universally 
held and understood to fix the order of water rights upon the public 
domain and the custom preceded the right by twenty years. The 
question of the application of these principles upon private estates 
became pertinent upon the granting of private title in California 
lands under the federal law. 

The determination of the respective water rights incident to and 
subsequent to public and private estates, necessarily entails a decla- 
ration as to the precise source of the right to use the waters of 
natural streams; and upon this point has centered the chief con- 
flict over irrigation rights in the United States. A California 
decision of 1857 attempted to sustain the common-law riparian 
right upon private estates against all priority rights except such as 
were established while the land was still a part of the public 
domain." Because of the indirect bearing of this case and the 
uncertain nature of the opinion the decision has not been recognized 
as a ruling precedent-^* In spite of scattering implications to the 



i*The Congressional act of July 26, 1866 declared that mineral lands 
of the United States were free and open to exploration and occupation, 
subject to such regulations as might be prescribed by law and the local cus- 
toms or rules of the inhabitants of the several districts, as far as the same 
were not in conflict with the laws of the United States. The act further 
provided that water rights established by priority of possession should be 
maintained and protected, and the right of way for canals and ditches for 
the purpose of diverting water for mining, agricultural, or mechanical use 
was aclaiowledged and confirmed. Supplementary acts of July 9, 1870 and 
May 10, 1872, made all subsequently issued land patents subject to previously 
recognized water rights. 

^^Crandall v. Woods (1857), 8 Cal. 136. In this case it was advanced 
that the rule established in Irwin v. Phillips was by no means exclusive of 
riparian rights, but that such rights attach to the land through which a 
stream flows, in favor of settlers thereon, as against all but appropriations 
actually made prior to the settlement of the land. 

^•The opinion has been deemed somewhat biased because of the fact 
that it was uttered by Justice Murray at a time when he was attempting to 
shape the doctrine of appropriation as a modification of the common-law 
rule and not to ue recognized as the basis of an independent system. Wiel, 
Water Rights in the Western States (1st Ed.), p. 33. Moreover, the 



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contrary/^ the prevalent impression, prior to 1886, was that the 
common-law doctrine of riparian rights had been rejected in toio 
in California." 

In 1886, in the case of Lux v. Haggin, the Supreme Court of 
California established a definite principle as the basis of water 
rights in that state which remains the rule of decision to the pres- 
ent day. The case involved the right to the use of the waters of 
Kern River in the San Joaquin Valley, and the plaintiffs invoked 
the doctrine of riparian rights to relieve them from injury resulting 
from the appropriation of the waters of the stream for purposes 
of irrigation. The lower court found neither party to be a riparian 
owner and decided in favor of the defendant. The plaintiffs, how- 
ever, alleged riparian rights and appealed to the Supreme Court of 
the state. The Supreme Court applied the law to the issues as 
made by the pleadings and left the facts to be determined by a new 
trial. In an opinion occupying nearly two htmdred pages of the 
California Reports, the plaintiffs were sustained in their alleged 
supremacy of the riparian right over subsequent appropriations for 
use, three of the seven members of the court dissenting.^* The 
court maintained that the rule of priority of appropriation was 
unknown to the common law,^® but that, although independent of 
the conmion-law doctrine of riparian rights, it was not destructive 
thereof. Appropriation was sustained as the basis of rights in the 
use of water upon public lands; but the riparian right of the com- 
mon law was declared to attach to all land as soon as it becomes 
private, remaining subject to appropriations made prior to that 
time, and free from hostile appropriations thereafter.*^ It was 
further advanced that riparian rights were to be protected upon 
constitutional principles, and that their abrogation permitted the 



♦ 



1^ 

52 



rii^arian estate under discussion was a mining claim, and the use desired 
quite foreign to the common law. Only two or three times has a court 
attempted to use this opinion as a precedent. 

17 "We have recognized the right to appropriate where no riparian rights 
intervene." Conger v. Weaver (1856), 6 Cal. 548 65 Am. Dec. 528. "Pos- 
session, or actual appropriation, must be the test of priority in all claims 
to the use of water, whenever such claims are not dependent upon the 
ownership of the land through which the water flows." Kelley v. Natoma 
Water Co. 0856), 6 Cal. 105. 

i®Pomeroy on Waters, § 108; Wiel, Water Rights in the Western 
States, p. 33; Lux v. Haggin (1886), 69 Cal. 255, 4 Pac. 919, Dissenting 
opinion. 

^•Lux V. Haggin, supra, n. 18. 

20 Ibid, pp. 387-389. 

" Ibid, pp. 368, 375, 380. 



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I50 CALIFORNIA LAW REVIEW 

taking of property without due process of law and made possible 
an unwarranted interference by the state with the prinury dis- 
posal of the federal lands.** 

Lux V. Haggin clearly established a restricted form of common- 
law riparian rights in California, but the doctrine of appropriation 
was simultaneously acknowledged and is still recognized — ^both 
judicial and statutory law grant the two doctrines concurrent 
existence as the respective bases of two contemporaneous systems 
of water rights in that state. In theory, the two systems are of 
equal importance and command equal consideration by the courts 
but, as the lands of California passed into private ownership, the 
common-law principle, although gradually modified, acquired a 
widened sphere of application, while the field of priority rights has 
proportionately narrowed. 

The bifurcated garment of irrigation jurisprudence evolved 



22 upon the first appeal, Justice Sharpstein contrasted the contending 
doctrines of riparian rights and appropriation in the following terms: "But 
it is insisted by respondent's counsel that both the United States and the 
State have adopted a policy, in respect to water flowing over their lands, 
which is inconsistent with the doctrine of riparian rights as we construe it 
As a result of that policy, it is claimed that a grant of land by either of 
those governments must be read as if it contained a condition that any one 
should, thereafter, be at liberty to appropriate so much of the water of any 
natural stream running over such lands as the grantee had not previously 
appropriated to some useful purpose other than that which is subserved by 
flowing naturally over such land. That would constitute a reservation of an 
interest in the land granted, not for the benefit of the grantor, but for that 
of any other person who might choose to avail himself of it If a grant 
does not contain any such expressed reservation or condition, we ought not 
to interpolate one unless it is clearly implied, because the general rule is 
that the owner of property cannot be divested of any interest in it by the 
simple prior appropriation of that interest in it by some one else. Both, the 
State and the United States governments have granted to private persons 
and corporations large tracts of land which have remained unoccupied and 
in their virgin state for many years afterwards. It probably never occurred 
to any one that the owners, by neglecting to appropriate the grasses and 
trees naturally growing on such lands to some useful purpose, left them 
open and subject to a rightful appropriation by some one else. And yet we 
have the same authority for holding that a simple grant of land conveys a 
right to have the water flowing over it continue so to flow, as we have for 
holding that it conveys a right to the trees and grasses growing on it, or to 
the sou itself. The principle that he who first appropriates property to a 
useful purpose is best entitled to it, applies only to cases in which none of 
the parties has a grant, actual or presumptive." 

The opinion in Lux v. Haggin was concurred in by Justices McKinstry, 
McKee, Sharpstein, and Thornton. Justices Morrison, Ross, and Myridc 
dissented — aflirming that the adoption of the common law, by act of legis- 
lature, April 13, 1850, "was not intended to and did not establish a rule of 
decision as to the right of appropriation of water for irrigation," and that, 
if applied, the common law must be interpreted in the light of conditions 
prevailing in the country in which the application is made. Ibid, p. 440. 



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from the opinion of a divided court in Lux v. Haggin is known 
as the California system and has been essentially adopted in the 
states of California, Oregon,^*, Washington,^* Montana," North 
Dakota,^* Nebraska,*^ Texas,^® Kansas,^® and South Dakota.*® 

The law, as established by the ruling decision, has since been 
supplemented by precision as to the time of the inception of water 
rights and the manner in which they may divest. Rights of 
riparian proprietors are held to attach simultaneously with the 
acquisition of private title in the land, and will thereafter be pro- 
tected, in a reasonable and proportionate use against subsequent 
appropriation.*^ Water rights, having been acquired by non- 
riparian proprietors, may be divested by grant from such proprie- 
tors, or by operation of law, through prescription, adverse user, or 
condemnation.*^ In controversion of the common law, riparian 
rights have also been made subject to valuation apart from the 
land** and to condemnation under eminent domain, and to extinc- 
tion by prescription and adverse use, and to accomplish this, 
statutes and court decisions in states of the California system have 



28 Carson v. Gentner (1898), 33 Ore. 512, 52 Pac. 506. 

2* Benton v. Johncox (1897), 17 Wash. 277, 49 Pac. 495; Sander v. 
Wilson (1904), 34 Wash. 659, 76 Pac. 280. 

2* Smith V. Denniff (1900), 24 Mont. 20, 60 Pac. 398. 

2«Bigelow V. Draper (1896), 6 N. Dak. 152, 69 N. W. 570. 

2T Crawford Co. v. Hathaway (1903), 67 Neb. 325, 93 N. W. 781. 

"McGhee, etc. Co. v. Hudson (1893), 85 Tex. 587, 22 S. W. 398; Mud 
Creek etc. Co. v. Vivian (1889), 74 Tex. 170, 11 S. W. 1078; Watkins Land 
Co. V. Qements (1905), 98 Tex. 578, 86 S. W. 733. 

2»aark V. Allaman (1905), 71 Kan. 206, 80 Pac. 571. 

»«Lone Tree Ditch Co. v. Cyclone Ditch Co. (1902), 15 S. Dak. 519, 91 
N. W. 352. The riparian right was previously affirmed in Dakota Territory 
by the United States Supreme Court in Sturr v. Beck (1890), 133 U. S. 541, 
33 L. Ed. 761, 10 Sup. Ct. Rep. 350. 

«i That section of the California civil code (§ 1422) which sustained the 
common law as the general rule of decisions was repealed in 1887 — the year 
following the decision in Lux v. Haggin, Cal. Stats. 1887, p. 144. The repeal 
is held, however, not to affect the rights of riparian proprietors since the 
leading case was decided independently of the code provision. 

"Recent cases in California show a decided tendency to cease citing the 
older cases on appropriation, assuming the doctrines there laid down as 
established and familiar law. This indicates that in California the law of 
appropriation has taken its place as a complete system, past the formative 
period in which the system may be said to remain in younger states." Wiel, 
Water Rights in Western States, op. cit., p. 36. Benton v. Johncox (1897), 
\7 Wash. 277; Sturr v. Beck (1888), 6 Dak. 71; Sturr v. Beck (1889), 133 
U. S. 541. 

>2 Mills, Irrigation Manual, p. 30, and cases there cited. 

** San Joaquin & Kings River Co. v. Stanislaus County (1914), 191 Fed. 
898; San Joaquin & Kings River Co. v. Stanislaus County (1914), 233 
U. S. 454. 



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152 CALIFORNIA LAW REVIEW 

declared the use of waters of natural streams for beneficidl pur- 
poses to be a public use.^^ 

The constitution of California recites that "the use of all water 
now appropriated, or that may hereafter be appropriated, for sale, 
rental or distribution, is hereby declared to be a public use, and 
subject to the regulation and control of the state, in the manner to 
be prescribed by law.""* A recent decision of the Supreme Court 
of California has finally interpreted the legal significance of this 
"public use." "Under the law of this state, .... the water right 
which a person gains by diversion from a stream for a beneficial 
use is a private right. The same is true as to water rights in 
streams upon the public domain in California. The title and 
ownership is private and the only interest of the public is that of 
beneficiaries of the use or trust. The property does not become 
impressed with a public use or trust until after the owner has first 
acquired it and then dedicated it to the use. The acts of acquisi- 
tion and dedication are distinct."'* 

An act of April 8, 191 1, amended the Civil Code so as to declare 
"all water or the use of water, within the State" to be "the 
property of the people of the State of California." The interpreta- 
tion, by the Supreme Court, of this amendment to the Code, seems 
to strip it of any probable importance in relation to water rights 
within the state. It is not retroactive. The only effect which it 
may have is to dedicate to general public use any riparian rights 
which the state, at the time it was enacted, may still have retained 
by virtue of its ownership of lands bordering on the streams, 
which it would, in such cases, have in common with owners of 
other abutting land. All previously established rights, whether 
riparian, or prescriptive, remain unaffected'* 

The Supreme Court of California in 191 5 reaffirmed the legal 
superiority of the riparian water right in that state in such positive 
terms as to leave no room for doubt concerning the juristic policy 



»**Cal. Const. Art. XIV, § 1. 

**Lux V. Haggin, supra, n. 18; Gal. Pastoral & Agricultural Co. v. 
Madera Canal & Irri. Co. (1914), 167 Cal. 78, 138 Pac. 718; Border v. 
Trespalacios R. & I. Co. (Texas, 1904), 82 S. W. 461, 98 Tex. 494, 
86 S. W. 11, 107 Am. St. Rep. 640; Bullderick v. Hermsmeyer (1905), 32 
Mont. 541 81 Pac. 334. 

8« Thayer v. California Development Co. (1913), 164 Cal. 117, 128 
Pac. 21. 

"Cal. Civ. Code, § 410; Palmer v. Railroad Commission (1914), 167 
Cal. 163, 175, 138 Pac. 997. 



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underlying the present California system of irrigation law. Review- 
ing the judicial decisions since Lux v. Haggin, the court said : 

"These decisions show that while an appropriation or diver- 
sion made upon lands of the United States gives the appropri- 
ator or diverter a right to the water as against the United 
States it does so solely because, by the act of Congress of 
July i6, 1866, the United States declared that such diversion, 
if recognized by local laws, should be effectual to confer upon 
the diverter the riparian rights in the stream pertaining to the 
land of the United States abutting thereon, that it gives no 
right as against other landowners, that it does not take place 
upon the theory that the water is held by the United States for 
public use, but because, as proprietor of the land, the United 
States, by that act, granted a part of its property in its land to 
such diverter. Also they show that the appropriator under the 
Code may obtain a similar right as against riparian rights of 
the state pertaining to any lands which the state may own 
along the course of the stream ; but that this right may be thus 
acquired, solely because the state in section 1410 of the Civil 
Code has so declared, and that this declaration binds the state 
as to its proprietary lands, but does not affect lands of other 
persons, or water rights pertaining to such other lands, and 
that, except its riparian rights pertaining to lands which it 
owns bordering upon non-navigable streams, the state has no 
right to the waters thereof and, consequently, cannot dispose 
of any other rights."*^ 

The supreme courts of Nebraska and Oregon have partially 
removed those states from the effect of the common-law right as it 
obtains in the other states of the California system. In 1903, the 
Nebraska court construed the state irrigation law of 1889 as hav- 
ing abrogated the rule of riparian proprietorship in the acquisition 
of water rights since that time ; maintaining, however, that riparian 
rights which had accrued prior to the enactment of the law should 
be protected.*® In 1908, the Oregon court placed a similar con- 
struction upon the Federal Desert Land Act of 1877; that is, that 
public lands entered after that date were accepted with the implied 
imderstanding that, except as to use for domestic purposes, the first 
to appropriate and use the water for irrigation should have the 
superior right.** 



»» Duckworth v. Watsonville Water & Light Co. (1915), 170 Gal. 425» 
432, 150 Pac. 58. 

w Crawford Co. v. Hathaway (1903), 67 Neb. 325, 93 N. W. 781. 

••Hough V. Porter (1908), 51 Ore. 318, 95 Pac 732. These rulings have, 
however, mainly served to enlarge the degree of elasticity or the sphere of 
judicial discretion in defining water rights. 



z^' 



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154 CALIFORNIA LAW REVIEW 

Theory of the California Water Right. 

By the treaty of Guadalupe Hidalgo, Feb. 2, 1848, the United 
States succeeded to the Mexican title and became the sole owner of 
the lands and natural waters of the so-called Mexican Cession, with 
the exception of certain private estates created by prior grants 
from the Mexican government which the United States respected. 

The theory upon which present water rights rest in this coimtry 
assumes that, in the absence of statutes, the common law became 
operative simultaneously with the acquisition of title by the United 
States. Under a strict interpretation of the common law, the federal 
government succeeded to a complete riparian proprietorship in its 
waters when it became sole proprietor in fee simple of the land- 
These property rights, tmtil transferred to private persons, have 
been held by the United States exactly as in private ownership, with 
the exception that they are not taxable. Upon these grounds, it is 
maintained that the United States, as sole proprietor, had unlimited 
right to do with the streams upon its land as it chose. It could 
( I ) transfer the land together with the use of the water thereon as 
an incident thereto, or (2) it could grant each separately, and, 
furthermore, (3) lawful grants could be expressed, or could be 
implied by non-interference. 

Up to 1866, the United States acquiesced in the customs and 
regulations established by the California miners which permitted 
the separate appropriation of the water. In fact, land and water 
were customarily appropriated separately, and, by the acts of 1866 
and 1870, such implied grants of separate appropriations were con- 
firmed and future titles were guaranteed when the appropriations 
were upon government land. It is further held that the govern- 
ment has chosen to transfer a part of its lands, together with inci- 
dent riparian rights, under the generally accepted meaning of the 
common law, and that such a transfer is presumed when the water 
upon the land has not previously been separately granted.*® 

In Lux V. Haggin, the court said : 

"Recognizing the United States as the owner of the lands 
and waters, and as therefore authorized to permit the occupa- 
tion or diversion of the waters as distinct from the lands, the 
State courts have treated the prior appropriator of water on 



*® Lux V. Haggin, supra, n. 18 ; Mills, Irrigation Manual, p. 28 and cases 
there cited; Kinney, Irrigation & Water Rights (1st Ed.), 8§ 135, 148» 188; 
Wiel, Water Rights in Western States (2d Ed.), p. 49 et seq; Pomeroy and 
Famham, passim. 



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THE CALIFORNIA IRRIGATION RIGHT 



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the public lands of the United States as having a better right 
than a subsequent appropriator, on the theory that the appro- 
priation was allowed or licensed by the United States. It has 
never been held that the right to appropriate waters on the 
public lands of the United States was derived directly from 
the State of California as the owner of innavigable streams and 
their beds. And since the act of Congress granting or recog- 
nizing a property in the waters actually diverted and usefully 
applied on the public lands of the United States, such rights 
have always been claimed to be deraigned by private persons 
under the act of Congress, from the recognition accorded by 
the act, or from the acquiescence of the general government in 
previous appropriations, made with its presumed sanction and 
approval."*^ 

Courts of other states, in sustaining the California system have 
held that, "As the United States .... owns the waters which are 
an incident to its lands, it can dispose of them separate from its 
lands if it chooses,"** and that "The water in an innavigable stream 
flowing over the public domain is a part thereof, and the national 
government may sell or grant the same, or the use thereof, separate 
from the rest of the estate, under such circumstances as may seem 
to it proper."** 

The origin of the priority property right in water — a grant 
from the United States to the appropriator — as recognized by the 
California system, has frequently been reiterated in judicial 
opinions. In the language of Justice Baldwin, in Ortman v. 
Dixon,** "We hold the absolute property in such cases to pass by 
appropriation as it would by grant." Other courts have held the 
appropriator of water on the public domain to be "a licensee of 
the general government," and that when such parts of the public 
lands pass into private ownership they are "burdened by the ease- 
ment granted by the United States" to the prior appropriator of 
the water.** It is further asserted that a grant of the separate use 
of water must issue from the owner of both the land and the water, 
and "The right acquired by appropriation and user of the water on 
the public domain is founded in grant from the United States gov- 
ernment as the owner of the land and water,"** and, "imder the 
law of Congress, a grant of the kind of property in question is pre- 



"Lux V. Haggin (1886), 69 Cal. 255, 338. 

"Cruse V. McCauley (1899), 96 Fed. 369, 374 (Montana). 

"Howell V. Johnson (1898), 89 Fed. 556 (Montana). 

" (1859), 13 Cal. 33. 

*« Smith V. Hawkins (1895), 110 Cal. 122, 42 Pac. 453. 

^ Smith V. Denniff (1899), 24 Mont. 20, 60 Pac. 398. 



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156 CALIFORNIA LAW REVIEW 

sumed by the act of appropriation."*^ The right of appropriation 
and user, being deemed a grant from the United States to the 
appropriator, it is assumed that the grantor had authority to impose 
conditions and did so by the recognition of prevailing local customs 
and voluntary regulations which required that the appropriator 
should make a "beneficial use" of the water diverted.*® 

The Supreme Court of California in 1912 clearly alleged the 
prevalence of a theory of the law in that state which should make 
beneficial use the primal and ultimate sanction of the right to appro- 
priate water for purposes of irrigation: 

"It is the well-settled law of this state that one making an 
appropriation of the waters of a stream acquires no title to the 
waters, but only a right to their beneficial use, and only to the 
extent that they are employed for that purpose. His right is 
not measured by the extent of his appropriation as stated in 
his notice or by his actual diversion from the stream, but by 
the extent to which he applies such waters for useful or bene- 
ficial purposes. Beyond that, his appropriation or diversion 
of more than can be applied by him gives him no right to the 
excess, and this is subject to appropriation by any other per- 
son who may use it for similar beneficial purposes."*® 

We may not conclude, however, that this socially beneficial and 
universally applauded principle of irrigation water rights is no 
longer trammeled in California by the skeleton of legal l^timism 
and exclusive vested rights; for we read in the obiter dicta of the 
same court, in 1915: 

"It may well be that there is room for an even need for 
legislation which will require riparian proprietors to exercise 
their irrigation rights in the use of water within a limited 
period, or be decreed to have waived those rights. Other sim- 
ilar legislation making for the general good will readily occur 
to one's mind. But it is not the province of this court to legis- 
late, and it would be abhorrent to justice now to say to an 
upper riparian proprietor, who has rested in security upon the 
rights which this court has over and over again declared to be 
his, that he has lost those rights through no fault or failure of 
his own, but simply because he hcts not seen fit to use the 
waters upon his riparian land."^^ 



*7Barkley v. Tieleke (1874), 2 Mont. 59. 

*«Wiel, Water Rights in Western States (1st Ed.), p. 53; Pomeroy on 
Waters, § 32; Kinney, Irrigation & Water Rights, § 147. 

«Hufford V. Dye (1912), 162 Gal. 147, 153, 121 Pac. 400. 

«o Miller & Lux v. Enterprise Canal & Land Co. (1915), 169 Cal. 415, 147 
Pac. 567. 



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The effective theory of the California water right is mainly the 
product of what may be called the legitimist school of juristic 
thought. The California water right owes its legal sanction to 
that philosophy which grants prevalence to time-established 
principles because of former recognition and application, proprio 
vigore, rather than because of fitness to actual and potential eco- 
nomic and social needs. The right is based upon the theory that 
the common law of England contains, in germ or development, all 
legal principles essential or beneficial to society. Novel climatic 
conditions and resulting economic necessities in California have 
been met by perennial judicial amendment and temporizing rein- 
terpretation of the common-law concepts of property and contract, 
rather than by positive and constructive measures. Considered in 
the light of the theory and origin of law, California has established 
a hybrid practice in the acquisition, use, and transfer of property 
in water, — a practice in fact unknown to the tenets of the conmion 
law, which, nevertheless, is its judiciably determined mater 
famUias.^^ Finally, the California theory of irrigation water rights 
assumes that the sovereignty which passed from Mexico to the 
United States was a common-law property in the lands and the 
natural waters thereon; consequently, rights in such lands and 
waters may be granted to private owners within limits established 
by the common-law conception of property, but beyond which the 
government, never having owned, has nothing with which to part 
and cannot confer title. The government may confer, by specific 



*ilii evidence of the judicial recognition of this fact, such opinions as 
the following are not infrequent: 

"The business of gold mining was not only new to our people, and the 
cases arising from it new to our Courts, and without judicial or legislative 
precedent, either in our own country or in that from which we have bor- 
rowed our jurisprudence; but there are problems intrinsic in the subject 
itself that it is almost impossible to settle satisfactorily, even by the applica- 
tion to them of the abstract principles of justice." Justice Burnett, in Bear 
River Water Co. v. N. Y. Mining Co. (1850), 8 Cal. 327, 332. 

"There are many questions of great doubt and difficulty, peculiar to the 
Pacific coast, to which I have not even alluded." Black's Pomeroy on 
Riparian Rights, p. 348. 

"Various problems in connection with the fair apportionment and 
economic use of the waters of this state never came within the purview of 
the common law. They have been of necessity, and must continue to be 
solved by this court as cases of first impression, and if the rule of decision 
at common law is found unfitted to the changed conditions in this state, so 
that its application will work wrong and hardship rather than betterment 
and good the court will refuse to approve and follow the doctrine." San 
Joaquin etc. Co. v. Fresno Flume & Irri. Co. (1910), 158 Cal. 626, 112 Pac. 
lo2. 



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158 CALIFORNIA LAW REVIEW 

or implied terms, property in water for industrial purposes, and the 
lands, thereby deprived of their riparian rights, will thereafter 
remain so denuded. But if, at the time of the sale or granting of the 
land by the government, there shall have been no prior grant of the 
waters to which it is riparian, the conmion-law right in such waters 
passes with the land. 

This riparian right is, theoretically, subject to forfeiture by non- 
use and prescriptive appropriation, being thus converted, by due 
process of law, to a property right which is economically sanctioned 
by beneficial use. In practice, this very desirable transition of 
impotent common-law rights to fruitful priority usufructs is not 
now legally expedient, or, indeed, in any considerable degree, pos- 
sible. The statutory period of prescription in California is five 
years. At any time during this period a riparian proprietor may 
enjoin an adverse appropriator upon the theory that such a use is 
an interference with his freehold which is entitled to restrain lest 
it ripen into a prescriptive right. The Supreme Court has repeatedly 
authorized such restraint without requiring a showing of material 
damages on the part of the riparian owner. 

Under this conception of the law, the several states may not 
themselves define real property within their borders. The pro- 
prietors of rights in land or water which was once a part of the 
public domain derive their property rights from the United States, 
as land owner under the property concept of the common law, but 
neither from the state nor the general government as law maker-^^ 
The legislative power of the United States would thus appear to 
be limited to the principles of the common law, and that 
of the states to the procedure of their courts, and to matters within 
the police power — ^the states being subject of course to the consti- 
tutional admonition against trespassing on the powers of congress 
or infringing the guarantees of vested rights. 



5* Lux V. Haggin, supra, n. 18; Gal. Pastoral & A. Co. v. Madera 
Canal & Irri. Co. supra, n. 34; Duckworth v. Watson ville Water & Light 
Co. (1915), 170 Cal. 425, 150 Pac. 58; Cal. Civ. Code, § 1410; WUley v. 
Decker (1903), 11 Wyo. 496, 73 Pac 210; White v. Farmers' C & R. Co. 
(1896), 22 Colo. 191, 43 Pac. 1028; Wicl, Water Rights in the Western 
States, (3rd Ed.), p. 86. 



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Summary of Characteristics of the California ^ 

Irrigation Right. 

The California system of irrigation jurisprudence may be said 
to recognize the following principles as fundamental in the law of 
inland waters: 

1. Property rights in the use of inland waters exist by 
virtue of (a) Mexican grants under the civil law; (b) riparian 
proprietorship under the common law; (c) prior appropria- 
ation upon the public domain as justified by the customs of 
the cotmtry; (d) conversion of either riparian or priority 
rights by subsequent appropriation through non-use, declara- 
tion of right, adverse use and prescription. The priority right, 
however, is a derived right, being originally a separate grant 
of the water-privilege of a riparian property. 

2. An appropriation is construed to be a grant from the 
United States, as proprietor of the public domain, of the use 

of waters on or adjacent to its lands, and limited only by the 
total right which the government has in such waters. The 
right is private property; the use is a "public use." 

3. The relation between successive appropriators is that he 
who is first in time is first in right to the extent of his appro- 
priation and application to beneficial use; and rights in the 
surplus accrue to subsequent appropriators, each in his turn 
and to the extent of his use. 

4. Between riparian proprietor and appropriator, the rela- 
tion is that of successive grantees from the same owner. They 
are independent and priority of title governs ; but with the one 
it is priority of location and occupation of riparian lands, and 
with the other it is the order of diversion and appropriation of 
the water. In either case, the surplus over the needs and uses 
of the grantee, not being included in his grant, remains for 
the benefit of subsequent riparian proprietors or appropriators. 

5. The old common-law limitations as to diminution of 
quantity or change of quality of waters is in no case imposed 
as regards rights in non-navigable streams. The perpetuity 
and non-separable attachment of the common-law water right 
to riparian estates no longer obtain, with respect to the 
riparian water right of California. 

R. H, Hess. 
University of Wisconsin, 
Madison, Wis. 



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California Law Review 

Published by the Faculty and Students ^ the School «f Jurisprudence «f the 
University ^ California, and issued Bi-monthly throughout the Year 3^ 3^ 3^ 

Subscrq^tion Price, $2.50 Per Year Single Copies, 50 Cents 

ORRIN K. McMURRAY, Editor-in-Chief 
MATT WAHRHAFTIG. Student Editor-in-Chicf 

M. C. LYNCH, Business Manager 

S. F. ROLLINS, Student Business Manager 

ROSAMOND PARMA, Secretary 



Faculty Board of Editors 
A. M. KIDD 
WM. CAREY JONES A. P. MATTHEW 

WM. E. COLBY M. C. LYNCH 

M. E. HARRISON J. U. CALKINS, Jr. 



Student Board of Editors 

JACOB GOLDBERG, W. A. SITTON, 

Associate Editor Associate Editor 

S. M. Arndt J. C. Nichols 

R. E. HoYT O. C. Parkinson 

H. A. Jones Carol A. Rehfisch 

J. L. KNOWLES J. B. Whitton 
Frances H. Wilson 



Comment on Recent Cases 

Bills and Notes: Assignment on Back of Note as Indorse- 
ment. — ^Thc question as to whether an assignment on the back of a 
promissory note is a qualified or a general indorsement depends for 
its answer on the principles of legal construction. The Oklahoma 
court in Copeland v. Burke,^ held that writing on the back of a 
note "I transfer my right, title and interest in the same" is a gen- 
eral, not qualified, indorsement The case imdoubtedly follows the 
nimierical weight of authority.^ 

The Negotiable Instruments Law and the California code state 
the general common law rule that one who puts his name on the 

1 (1916), 158 Pac. 1162. 

2 Maine Trust & Banking Co. v. Butler (1891), 45 Minn. 506, 48 N. W. 
333, 12 L. R. A. 370; Markey v. Corey (1895), 108 Mich. 184, 66 N. W. 493, 
36 L. R. A. 117; Behems v. Kirkgard (1912), Tex. Civ. App., 143 S. W. 698; 
Famsworth v. Burdick (1915), 94 Kan. 749, 147 Pac. 863; Hurt v. Wiley 
((Georgia, 1916), 89 S. E. 494; Daniel, Negotiable Instruments, § 688c. 



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COMMENT ON RECENT CASES 



i6i 



back of a negotiable instrument is a general indorser, unless he indi- 
cates His intention to qualify the indorsement by appropriate words, 
thus making himself liable merely as assignor.* Where the name 
appears as the signature to an assignment on the back of the note, 
the question is as to whether the implication of a general indorse- 
ment arising from the signature, or the implication of qualified 
liability arising from words of assignment, shall prevail. 

The cases on the subject represent two lines of authority, one 
holding such a writing to be a general indorsement, the other 
holding it to be nothing more than an assignment. The former is 
founded on the maxim, "The expression of those things which are 
tacitly implied operates nothing;"* the latter reasons from the 
maxim, "The expression of one thing is the exclusion of another."* 

The latter, on the whole, seems the better view ; and it is sup- 
ported by strong arguments and sufficient authority.* The assign- 
ment is a contract, and is to be construed by the usual rules of con- 
struction. The intention, therefore, will control, and any words 
demonstrating the intention of the indorser to qualify the indorse- 
ment will have that effect.^ Distinctions have been made between 
the use of the words "I assign" and "I assign my interest,"® the 
intention to assign being much clearer in the latter case, since the 
transferor does not pretend to assign more than his particular inter- 
est; but it would seem that mere assignment is intended from the 
very word "assign." The presence of the signature should not con- 
trol, for the assignment is not intended as an enlargement on the 
signature, but the signature is intended as nothing more than a 
part of the assignment written above. And it may well be argued 
that if liability as indorser was intended, why use so many words — 
words, too, which ordinarily indicate a lesser liability — ^when no 
woids at all would have had the effect desired ?• The expression of 
the purpose with which the name is indorsed excludes the implica- 
tion of any other purpose, for no implication should be made con- 
trary to a manifested intention.^* The words of assignment, there- 



» Oklahoma Revised Laws, 1910, §§ 4113, 4088; Negotiable Instruments 
Law, §§ 63, 38; Cal. Civ. Code, §§ 3108, 3118. 

* Maine Trust & Banking Co. v. Butler, supra, n. 2 ; Davidson v. 
Powell (1894), 114 N. C. 575, 19 S. E. 601; Adams v. Blethen, 66 Me. 19, 
22 Am. Rep. 547. 

« Spencer v. Halpem (1896), 62 Ark. 595, 37 S. W. 711, 36 L. R. A. 120; 
Hailey v. Falconer (1858), 32 Ala. 536. 

•May V. Dyer (1893), 57 Ark. 441, 21 S. W. 1064; Evans v. Freeman 
(1906), 142 N. C. 61, 54 S. E. 847; Gale v. Meyhew (1910), 161 Mich. 96, 
125 N. W. 781 ; and cases cited supra, n. 5. Also 12 Harvard Law Review, 
566; Williston, Commercial Law and the Law of Negotiable Instruments, 
§ 275; Tiedman, Commercial Paper, §265. 

^Hailey v. Falconer, supra, n. 5; Bond v. Holloway (1897), 18 Ind. 
App. 251, 47 N. E. 838. 

•Aniba v. Yeomans (1878), 39 Mich. 171; 24 Harvard Law Review, 58. 

• Spencer v. Halpem, supra, n. 5. 

10 Broom's Legal Maxims (8th ed. by Chitty) 510. 



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i62 CALIFORNIA LAW REVIEW 

fore, being expressed, should be considered a qualified indorsement ; 
and any different construction, it would seem, renders the trans- 
feror liable on a warranty which he has plainly indicated he did 
not intend to undertake. 

E. W, p. 

Constitutional Law: Construction of Fish and Game 
Act. — "The Legislature may provide for the division of the state 
into fish and game districts, and may enact such laws for the 
protection of fish and game therein as it may deem appropriate to 
the respective districts."^ Although this section was added to the 
constitution in 1902, its effect has never been fully determined. 
In re Cecinino^ held that this section took from the coimty board 
of supervisors all power they had formerly held to regulate fish 
and game, and vested it exclusively in the state legislature, and 
that consequently an ordinance of the local body, passed after 1902, 
was unconstitutional, and no conviction could be valid under such 
ordinance. This opinion is rested largely upon ex parte Prindle,* 
without noticing the fact that in the latter case but two judges of 
the District Court of Appeal concurred in this construction, and 
therefore that no official opinion exists. 

In the principal case, the court holds that as "may" in the 
amendment is mandatory upon the legislature, the right to con- 
trol fish and game is exclusively in the legislature, and action by 
the local body is unconstitutional. This raises the question whether 
"may" should be interpreted as mandatory rather than permissive. 

It is a general rule that where it is provided that a board or 
council "may" act, and either the rights of third persons are in 
question, or a duty to act is present, then "may" is interpreted to 
mean "must."* But the case of the legislature of a state presents a 
different problem. Its power is from its nature in the highest 
degree discretionary.* It would seem, therefore, that a distinction 
should be drawn between inferior bodies, which can be compelled 
to act by mandamus, and the legislature, which the court admits 
"could not be compelled by any known legal process to legislate 
upon the subject of fish and game." Now, if the legislature can- 
not be compelled to act, how can we say that it "must" act? It 
would seem that "may," therefore, is merely permissive. 

This view is further strengthened by reference to another sec- 
tion of the Constitution of California.® "Any county, city, town, 
or township may make and enforce within its limits all such local, 



1 Gal. Const, Art IV, § 25^. 

2 (Aug. 9, 1916), 23 Gal. App. Dec. 239. 

«Ex parte Prindle (1905), 94 Pac. 871 (not officially reported). 
* Supervisors v. United States (1866), 71 U. S. 435. 18 L. Ed. 419; 
Hayes v. County of Los Angeles (1893). 99 Cal. 74. 33 Pac 766. 
'^Cooley on Constitutional Limitations (7th ed.), 126. 
«Cal. Const., Art XI, § 11. 



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COMMENT ON RECENT CASES 



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police, sanitary, and other regulations as are not in conflict with 
general laws." The control of fish and game falls within the police 
power/ It is a general rule of constitutional interpretation that 
two sections, conflicting or partially conflicting, are to be read 
together as a harmonious whole in so far as possible, the more 
definite to control the more general.® The newer section does not 
expressly repeal the older in regard to the powers of local bodies 
to regulate fish and game. Its purpose is rather to increase the 
power of the legislature. The powers of the legislature are not 
limited by those of local bodies, but are absolute for making 
general laws. Prior to 1902, this limitiation as to general laws 
prevented the legislature from dividing the state into fish and 
game districts and making different rules for each. To remove 
this restriction was the purpose of the amendment. Therefore, the 
later section does not expressly exclude control of fish and game 
under the older ; the older is repealed only pro tanto ; and the local 
bodies would seem to have power to act until the legislature 
asserts its rights. Accordingly, it has been held that the amend- 
ment of 1902 did not of itself repeal the local rules in force at its 
adoption* and that these rules remained effective until the legisla- 
ture acted.® If the view that the state legislature and the various 
local bodies have concurrent powers is accepted, ordinances passed 
by a county board of supervisors, subsequent to the adoption of 
the amendment and prior to the passage of conflicting laws by the 
legislature, are constitutional, and convictions under them are 
valid. 

/. L. K. 



Contracts: Joint or Joint and Several? — Contracts are 
either several, joint, or joint and several, according to the inten- 
tion of the parties to the contract. The intention is gathered from 
the construction and interpretation of the language used. It has 
been generally held that a promise, or obligation, undertaken by 
more than one person, will be presumed to be joint, in the absence 
of an express intent to make it several, or joint and several.* If 
the language in the contract is ambiguous the surrounding circum- 
stances and the interests of the parties will be looked at in determ- 
ining what the intention of the parties was.* 



»Ex parte Maier (1894). 103 Gal. 476, 37 Pac. 402, 42 Am. St. Rep. 129; 
Uwton V. Steele (1894), 152 U. S. 133, 38 L. Ed. 385. 14 Sup. Ct. Rep. 499. 

•Cooley on Constitutional Limitations (7th cd.). 92; Martin v. Election 
Commissioners (1899), 126 Cal. 404, 58 Pac. 932. 

•In re Cole (1909), 12 Cal. App. 290. 107 Pac. 581. 

lElUot V. Bell (1893), 37 W. Va. 834. 17 S. E. 399; City of Phila- 
delphia V. Reeves (1865), 48 Pa. St. 472; White v. Tyndall [1888], 13 App. 
Cas. 263. 

2 Ernst V. Bartle (1800), 1 Johns. Cas. 319; Eller v. Lacy (1894), 137 
Ind. 436. 36 N. E. 1088; White v. Tyndall [1888], 13 App. Cas. 263. 



t ^ 



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i64 CALIFORNIA LAW REVIEW 

In the case of Shelton v. Michael,^ the plaintiff entered into an 
agreement with the defendants, nine in number, engaging to con- 
struct a wagon road, from their timber claims to a public highway, 
for which they were to pay a certain sum. The contract was silent 
as to the nature of the defendant's obligation. The court held the 
obligation to be joint and several inasmuch as all of the defendants 
received some benefit from the construction of the road. In Cali- 
fornia the situation is governed by the Civil Code* which departs 
somewhat from the prevailing view, as is evidenced by the principal 
case.* An obligation imposed on several persons will be presumed 
to be joint, and not several, in the absence of express words of 
severance unless all of the obligors receive some benefit, present or 
past, from the consideration for which their promise has been 
given, in which case the obligation will be presumed to be joint 
and several. This has the effect of making most obligations 
entered into in California, by more than one person, joint and sev- 
eral.® An examination of the authorities in California, which are 
few in number, causes more or less confusion. The decisions are 
unimpeachable, but the courts have rendered their opinions with no 
great d^ree of clarity. In Harrison v. McCormick^ it was said: 
"The rule is well settled that several persons contracting together 
with the same party for one and the same act shall be regarded as 
jointly and not as individually or separately liable, in the absence 
of any words to show that a distinct as well as entire liability was 
intended to fasten upon the promisors." This rule is well settled 
in other jurisdictions, but not in California. Here the exception to 
the rule supersedes and becomes itself the rule. Where a promise 
is made by two or more persons in the singular number it is at 
common law prima facie a several obligation only, unless the instru- 
ment as a whole shows a contrary intent.® In California this situa- 
tion has also been changed by the Civil Code* and the promise is 
presumed to be joint and several.*® 

A. L D, 

Criminal Law: Miscarriage of Justice: Constitutional 
Amendment. — ^Under section 4j4 of Article VI of the California 



« (Aug. 30, 1916), 23 Gal. App. Dec. 316, 160 Pac. 578. 

*Cal. Civ. Code, §§ 1431, 1659. 

5 Supra, n. 3. 

«Gummer v. Mairs (1903), 140 Gal. 535, 74 Pac. 26; Farmers' Exchange 
Bank v. Morse (1900), 129 Gal. 239, 61 Pac. 1088; Bell v. Adams (1907). 
150 Gal. 772, 90 Pac. 118; Moreing v. Weber (1906), 3 Gal. App. 14, 84 
Pac. 220. 

7 (1886), 69 Gal. 616, 11 Pac. 456. 

« Maiden v. Webster (1868), 30 Ind. 317; Hemmenway v. Stone (1810), 
7 Mass. 58, 5 Am. Dec. 27, 

» Gal. Giv. Code, § 1660. 

^oBagley v. Gohen (1898), 121 Gal. 604, 53 Pac. 1117; Farmers' 
Exchange Bank v. Altura Ciold M. & Min. Go. (1900), 129 Gal. 263, 61 
Pac. 1077. 



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Constitution no conviction can be reversed on appeal for any error 
of pleading or in the conduct of the trial "unless, after an examina- 
tion of the entire cause, including the evidence, the court shall be 
of the opinion that the error complained of has resulted in a mis- 
carriage of justice." The gist of the provision is found in "mis- 
carriage of justice." This phrase, really that of a layman, has no 
standing in the legal dictionaries,"^ nor as yet any definite interpre- 
tations in the decisions.* Five years of construction and applica- 
tion by the courts of this state have not defined it. 

It has been said that miscarriage of justice can only mean the 
conviction of one who is probably innocent.' Does that mean that 
if one is clearly guilty no error nor the infringement of any right 
of the defendant could warrant a reversal? There must be some 
constitutional rights which a defendant can insist upon regardless of 
guilt or innocence, and a jury trial in felony cases is no doubt one 
of them. However, the infringement of the right not to be com- 
pelled to testify against oneself in a criminal action has been held 
not to demand a reversal as a matter of course.* Beyond the mere 
statement that "it is an essential part of justice that the question of 
guilt or innocence shall be determined by an orderly legal pro- 
cedure in which the substantial rights belonging to defendants shall 
be respected,"' the cases announce no rule by which such rights can 
be determined. But where the evidence of guilt is not so conclusive 
and the error is not one demanding reversal as a matter of course 
the accepted view is that if the state of the record is such that in 
the absence of error the jury might reasonably have found for 
defendant the upper court will reverse, even though there are facts 
sufficient to support the verdict of guilty.® In People v, Preciado' 
the jury were erroneously instructed that the defense of insanity 
must be proved beyond a reasonable doubt instead of by a pre- 
ponderance of the evidence. On appeal it was held that the record 
disclosed facts from which, under the rule of preponderance of the 
evidence the jury might reasonably have found in favor of the theory 
of insanity, thus warranting a reversal, though the evidence would 
also support a contrary finding. The test to be applied is the same, 



^ The only attempted and obviously useless definition of the phrase is in 
Anderson's Dictionary of Law, that "miscarriage of justice imports a 
failure or defect in the administration of justice." 

2 The phrase appears in the English Criminal Appeal Act. of 1907, 
7 Edw. VII, c. 23, § 4, but no general definition can be drawn from the 
cases construing it. 

•Beatty, C. J., in concurring opinion in People v. Fleming (1913), 166 
Cal. 357, 136 Pac. 291, Ann. Cas. 1915B, 881. 

* People V. O'Bryan (1913), 165 Cal. 55, 130 Pac. 1042. 

»Sloss, J., in People v. O'Bryan (1913), 165 Cal. 55, 65, 130 Pac. 1042. 
See note on the case, 1 California Law Review, 375. 

•People v. Converse (1915), 28 Cal. App. 687, 153 Pac. 734; People v. 
Harlan (1916), 29 Cal. App. 600, 156 Pac. 980. 

7 (Sept. 26, 1916), 23 Cal. App. Dec. 462. 



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i66 CALIFORNIA LAW REVIEW 

whether the error is in the admission or rejection of evidence,* or 
in the misconduct of the prosecuting attorney,* or of the trial 
judge.^® 

After all it would seem that the only change resulting from sec- 
tion 4j/$ is in permitting the appellate courts to review the evidence. 
It is claimed that the section has done away with the presumption 
of injury from error.*^ It is true that there were early cases sup- 
porting such a presumption," but a proper interpretation of cer- 
tain parts of the Penal Code" led the later cases to demand a show- 
ing of injury to a substantial right, so far as this was possible with- 
out a review of the record.^* In civil cases too, under section 475 
of the Code of Civil Procedure a showing of substantial injury was 
necessary.^* But without the evidence before it the reviewing court 
could not properly estimate the effect of the error. Under section 
4j/$ a review of the evidence is now required. Therefore those 
desiring a reversal in criminal cases, and it would seem, also in 
civil cases, must include the whole record on appeal. Otherwise 
the court could not say that the part of the record not taken up on 
appeal would not show the error to be harmless. 

In those cases where the court could say that the error did not 
influence the verdict of the jury section 4^ has and will prevent 
reversals. But where there is a conflict of evidence and the court 
cannot say that in the absence of error the jury might not have 
reached a different result, there will be a reversal in spite of sec- 
tion 4j^. A thorough-going restatement of our criminal law and 
procedure is required, covering the organization of courts, the 
classification of offenses and offenders, the rules of evidence, the 
relation of the judge to the jury, and the system of instructions. 
Adequate institutions for the treatment of offenders are also a 
necessity. 

/. G. 

Estates of Deceased Persons: Presentation of Claims: 
Whether Amendments Allowable. — ^The complaint in an action 
against an estate, and the claim which was presented and rejected, 
alleged the failure of the decedent to deliver to plaintiff a certain 



8 People V. MacPhec (1914), 26 Gal. App. 218, 226, 146 Pac 522; People 
V. Converse, supra, n. 6. 

•People V. Keko (1915), 27 Cal. App. 351. 353, 149 Pac. 1003. 

'lo People V. Pitisci (1916), 29 Cal. App. 727, 157 Pac. 502. 

"People V. Merritt (1912), 18 Cal. App. 58, 122 Pac 839; People v. 
O'Bryan, supra, n. 4. 

"People V. Murphy (1873). 47 Cal. 103; People v. Furtado (1881), 57 
Cal. 345; People v. Richards (1902), 136 Cal. 127. 68 Pac 477. 

^'§§ 960, 1258, 1404. 

"People V. Brotherton (1874), 47 Cal. 388, 404; People v. Kamaunu 
(1895). 110 Cal. 609, 612, 42 Pac 1090; People v. Glaze (1903). 139 Cal. 
154, 162, 72 Pac 965; People v. Creeks (1904), 141 Cal. 527. 533, 75 
Pac 101. 

^^2 Hayne, New Trial and Appeal, p. 1592, and cases cited. 



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number of fruit trees, under a contract therein set forth. On 
appeal, the contract was interpreted to call for delivery from a 
specified lot only, and the complaint was held defective in failing 
to aver that the defendant had the requisite number on hand, or 
through negligence had failed to keep them on hand. Plaintiff 
then filed an amended complaint containing the required allega- 
tions, but it was held defective, in Pearson v. Parsons,^ as stating 
a cause of action not included within the claim presented. The 
time for filing claims having long since expired, and amendment of 
the claim not being permissible, the plaintiflF is wholly without a 
remedy. 

The decision is entirely in harmony with preceding California 
cases,^ yet there is obviously a hardship in forever barring a man's 
cause of action because he has misinterpreted the terms of an 
involved contract in filing his claim. Three possible remedies pre- 
sent themselves, one available under the law as it now stands, and 
the others requiring legislative action. 

Without doing violence to any statutory provisions, the courts 
could be much more liberal in allowing variance between the claim 
and the complaint, in purely technical respects. Immaterial vari- 
ances are at present overlooked to a greater degree than they would 
be in a complaint.* But a claim is not a pleading. It is merely a 
means of notifying the administrator of the existence of the 
demand against the estate. The services of a lawyer should not 
be necessary in the giving of such a notice. When the claim is 
rejected, action is brought upon the original demand, not upon the 
claim itself,* and recovery on substantially the same demand of 
which notice was given should not be barred for the reason that, 
technically, it is a different cause of action.' 

The hardship might also be obviated by allowing amendments 
to claims even after the time for presentation has elapsed. It is 
well settled that this cannot be done under present California law.® 
The general provisions for amendments would seem in themselves 
broad enough to cover the case,^ but they are apparently deemed 
restricted by the sections which "bar forever" all claims not pre- 



1 (Sept. 13, 1916), 52 Gal. Dec. 303, 159 Pac. 1173. 

^Barthe v. Rogers (1899), 127 Cal. 52, 59 Pac. 310; Etchas v. Orena 
(1900), 127 Cal. 588, 60 Pac. 45; Morehouse v. Morehouse (1903), 140 Cal. 
88. 73 Pac. 738; Bechtel v. Chase (1909), 156 Cal. 707, 106 Pac. 81. 

»Pollit2 V. Wickersham (1907), 150 Cal. 238, 88 Pac. 911; Western 
States Life Ins. Co. v. Lockwood (1913), 166 Cal. 185, 135 Pac. 496. 

* Gallagher v. McGraw (1901), 132 Cal. 601, 64 Pac. 1080. 

» Carter v. Pierce (1904), 114 111. App. 589; Taber v. Zehner (1911), 47 
Ind. App. 165, 93 N. E. 1035. 

« Estate of Sullenberger (1887), 72 Cal. 549, 14 Pac. 513; In re Turner's 
Estate (1900), 128 Cal. 388, 60 Pac. 967. 

7 Cal. Code Civ. Proc, §§ 469, 470, 473. See Belleville Sav. Bank v. 
Bomman (III.. 1886, 1887), 7 N. E. 686, 10 N. E. 552, for construction of a 
liberal general amendment statute. 



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i68 CALIFORNIA LAW REVIEW 

sented within the required period after notice.® A code provision 
expressly authorizing such amendments may be advisable, with 
proper limitations. 

A still more liberal remedy, which would relieve other and dif- 
ferent cases of hardship, as well as the one under discussion, would 
be a provision allowing entirely new, as well as amended claims to 
be filed at any time before the decree of distribution, at the dis- 
cretion of the court, upon a showing of fraud, accident, mistake, or 
other equitable circumstances excusing the failure to present within 
the statutory period. The code now allows such late filing in the 
case of a claimant who had no notice by reason of being out of the 
state,* and that exception might well be extended to other cases 
equally deserving. 

The code amendments suggested are in operation in a number 
of other states,^® and although they exist in connection with pro- 
bate systems differing more or less widely from the California sys- 
tem, it would seem that either could in substance be applied to the 
latter without serious inconvenience. 

O. C. P. 



Municipal Corporations: Municipal Affairs. — "Most of 
the larger cities in the United States are at the present time not 
only organizations for the satisfaction of local needs, but also 
agents of the central government of the State, and are entrusted 
with the exercise of powers aflfecting not only the inhabitants of 
the local districts of which they have jurisdiction, but also the 
inhabitants of the whole state."* Legislatures have not dis- 
tinguished so clearly as they should have done between these two 
functions, and have often forgotten that municipal corporations 
have a sphere of local action in which they should move freely and, 
in a large degree, uncontrolled. Thus, prior to 1896, the California 
legislature did not scruple to exercise control over all municipal 
actions, local as well as general.* The home-rule regime of munici- 
pal government was definitely established in California by the 
constitutional amendment of 1896.' While the amendment served 



8 Gal. Code Civ. Proc, §§ 1493. 1498, 1500, 1502. 

•Cal. Code Civ. Proc, § 1493. 

i<> Provisions allowing amendments: Appeal of Merwin (1899), 72 
Conn. 167, 43 Atl. 1055; Oiariton Nat Bank. v. Whicher (1914), 163 Iowa, 
571, 145 N. W. 299. ^ 

Provisions allowing late presentation under special circumstances: 
Brewster v. Kendrick (1864), 17 Iowa 479; Massachusetts Mut. L. Ins. Co, 
V. Elliot (1877). 24 Minn. 134; Cutting v. Ellis (1894). 67 Vt. 70. 30 Ati.688. 

^ (joodnow, Municipal Home Rule, 18. 

«Thomason v. Ashworth (1887), 73 Cal. 73, 14 Pac. 615; People v. 
Henshaw (1888), 76 Cal. 436, 18 Pac 413; Davies v. Qty of Los Angeles 
(1890), 86 Cal. 37. 24 Pac 771. 

« Cal. Const. Art XI. § 6. 



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to free municipalities of certain classes* from legislative control 
in municipal affairs, it afforded no aid in drawing the line between 
the two municipal functions. In fact it seems now to be conceded 
that it is impossible to attain a test that will fit all cases,*^ though 
an early case endeavored to do so.® The courts have, therefore, 
refused to bind themselxes to any set definition, but by regarding 
each case as presenting the concrete question whether "the matter 
at issue was or was not within the scope of municipal functions" 
have nevertheless been able to discriminate discerningly between 
local and state affairs.^ 

It is not too much to say, however, that recent decisions show 
a welcome tendency to construe liberally, and thus save to munici- 
palities the control desirable.® A unanimous court in Loop Lumber 
Company v. Van Loben Sels and American Surety Company of 
New York^ speaking through Mr. Chief Justice Angellotti, held 
that since the San Francisco charter provided a complete scheme 
for governing public works, it controlled in the matter of a bond 
to secure a contract to do public work, over a state law requiring 
such a bond equal to fifty per cent of the contract price, though 
the charter said nothing at all as to the amount. The total impres- 
sion given by the cases is that, although no fixed definition can be 
found, the field of municipal affairs is at least so well ascertained 
that no hesitation should be felt in leaving to the court the question 
as to what is a municipal affair, a result that would necessarily 
follow if the lengthy and not all comprehensive enumerations in 
charters were abolished and made to give way to a single clause in 
the charter to the effect merely that the municipality was hereby 
granted full control in municipal affairs.*® 

It was to attain this result that the amendment of 1914 to 
section 6 of Article XI was passed. The efficacy of the amend- 
ment in this respect has as yet not been squarely determined. The 
liberal bent taken by the court in the recent cases, however, affords 
basis for the hope that the amendment will be given the desired 
construction. It cannot really be said that dicta in the principal 
case and another, more recent,** declaring that the changed word- 

* Dawson v. Superior Court (1910), 13 Cal. App. 582, 110 Pac. 479. 
The classes thus freed comprised those cities organized by special legisla- 
tire charter prior to the adoption of the Constitution of 1879, and cities 
operating under freeholder's charters under that Constitution. 

« Sunset Tel. & Tel. Co, v. Pasadena (1911), 161 Cal. 265, 118 Pac. 796; 
Dillon, Municipal Corporations, § 165. 

•Fragley v. Phelan (1899), 126 Cal. 383, 58 Pac. 923. 

^The cases group themselves mainly under taxation, use of public 
money and property, and the exercise of purely administrative functions 
of the dty. 

« Matter of Application of Westenberg (1914), 167 Cal. 309, 139 Pac. 
674; Stem v. City Council of Berkeley (1914), 25 Cal. App. 685, 145 Pac. 
167; Schcafer v. Herman (1916), 51 Cal. Dec. 406. 155 Pac. 1084. 

» (July 28, 1916), 52 Cal. Dec. 223. 159 Pac. 600. 

" 1 California Law Review, 132, 145. 

11 Los Angeles v. Central Trust Co. of New York (Sept 11, 1916), 52 
C4d. Dec 298. 



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I70 CALIFORNIA LAW REVIEW 

ing of section 6, does not change its effect, are indicative of a con- 
trary construction. In both, the court explains its meaning to be 
that city charters are still paramount to general laws with respect 
to municipal affairs, a proposition that would be none the less 
true though the desired construction were given the section. 

W, A. S. 

Municipal Corporations : Rights of a Licensee, — ^What are 
the rights of a licensee who builds a cellar under the street as against 
a contractor who is repairing the street under a contract with the 
city? In the case of Norton v. Ransome-Crummey Company,^ it 
was held that where the contractor performed his work properly 
and without negligence the licensee could not recover for damages 
to his cellar which he suffered by reason of the curbings being torn 
up at the time a rainstorm occurred. 

It is unquestioned that the municipality had the right to contract 
for the repair and improvement of the street. In effecting these 
improvements, neither the city nor the contractor are, as a general 
rule responsible for consequential damages inflicted upon the 
property of the adjacent owner.^ In California, before the adop- 
tion of the constitution of 1879, decisions followed this rule.* But 
this constitution, with its provision that compensation must be 
made for the taking or damaging of private property for public 
use,* may be considered to have changed this, until it appears safe 
to say tihat damages, caused by improving the highway, to an 
adjacent owner's undoubted property must be compensated for." 

But has the licensee under the city any such property right as 
to entitle him to such compensation? A licensee can exercise no 
right inconsistent with the use of the street as a public highway .• 
The proper repair of the street is within the range of such use. 
Therefore, it is clear that the licensee could not build his cellar 
in such a manner as to interfere with the proper repair and im- 
provement of the street. The license granted to him is really a right 
to construct a cellar in such a manner as not to infringe the use 
or non-negligent repair of the street. In granting this license, 



1 (Sept. 20, 1916), 52 Gal. Dec 312, 159 Pac. 1177. 

2Callender v. March (1823), 1 Pick. (Mass.) 417; Transportation Co. 
V. Chicago (1878), 99 U. S. 635, 25 L. Ed. 336; 4 Dillon, Municipal Corpora- 
tions (5th ed.), 2921. 

8 Shaw V. Crocker (1871), 42 Cal. 435; Reardon v. San Francisco 
(1885), 66 Cal. 492, 6 Pac. 317. 56 Am. Rep. 109. 

* Cal. Const, Art I. § 14. 

5 Reardon v. San Francisco, supra, n. 3; Duncan y. Ramish (1904), 
142 Cal. 686. 76 Pac. 661; Eachus v. Los Angeles etc. Ry. Co. (1894). 103 
Cal. 614, 37 Pac. 750, 42 Am. St. Rep. 149; Stanford v. San Francisco 
(1896), 111 Cal. 198, 43 Pac. 605; Durgin v. Neal (1890). 82 Cal. 595. 23 
Pac. 133. 

« Nelson v. Godfrey (1850), 12 111. 22; Winter v. City Council of 
Montgomery (1887), 83 Ala. 589, 3 So. 235; 3 Dillon, Municipal Corpora- 
tions, (5th ed.). 1870-1871. 



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there would seem to be a condition implied to this effect from the 
nature of the case. Consequently, the licensee must understand 
that his license cannot be made use of in such a manner as to 
hinder or inconvenience the city in its proper duties. To compel 
the city, or a contractor working under it, to make compensation 
for injury inflicted upon the licensee without negligence would be 
such an inconvenience or hindrance. There would seem then, to 
be a duty cast upon the licensee so to construct his cellar as to 
guard against the injury, if one of non-negligent repair, and in the 
event of his failure to do so, no liability for resulting damages 
could be charged against the city or contractor. 

In the principal case, the court implies that had there been 
negligence on the part of the contractor, he would have been liable. 
But whether this implication proceeds upon the assumption that 
the licensee can maintain his action for the negligent interference 
with his right to have the cellar, or that the goods stored in the 
cellar were negligently destroyed, is not clear. The rule seems to 
be, that where a bare license is interfered with, the licensee cannot 
recover for interference with his exercise thereof by a third 
person.' But recovery appears to be allowed in the later cases 
where there is also involved possession by the licensee of property 
on the premises, in pursuance of the license ;• a fortiori, where 
the licensee, in addition to such possession, has made investments 
relying upon the license. The present case in effect fits into this 
last situation. Although this question has not been expressly 
adjudicated in California, it has been held that a license acted upon 
becomes in all essentials an easement upon the licensor's land." 
While it may be doubted whether a license, even if investments are 
made relying upon it, can become an easement, the courts seem to 
recognize the existence of a property right which may be pro- 
tected against the negligence of a third party. But where no neg- 
ligence exists, the license would seem to be subject to the implied 
condition that the city has a higher right, and no recovery for con- 
sequential damages can be had. 

/. L. K. 



»Hill V. Tupper (1863), 2 Hurl. & C. 121; Laing v. Whaley (1858). 2 
Hurl. & N. 476. 3 Hurl. & N. 675 ; Ottowa Gas-Light etc Co. v. Thompson 
(1869), 39 IlL 59a 

•Miller v. Inhabitants of Greenwich (1899), 42 Atl. 735, 62 N. J. Law 
771; Case v. Weber (1850). 2 Ind. 108; Paul v. Hazelton (1874), 36 N. J. 
Law 106; 13 Harvard Law Review, 151; 1 Tiffany, Modern Law of Real 
Property, 679. note. 

•Stoner v. Zucker (1906), 148 Cal. 516. 83 Pac. 808. 113 Am! St. Rep. 
301, 7 Ann. Cas. 704; Imperial Water Co. v. Wores (1915). 29 Cal. App. 
253, 155 Pac. 124; Flickenger v. Shaw (1890), 87 Cal. 126, 25 Pac 268. 22 Am. 
St Rep. 234, 11 L. R. A. 134; Smith v. Green (1895). 109 Cal. 228. 41 Pac 
1022. See also 4 California Law Review. 344. Contra: Lawrence v. 
Springer (1892), 49 N. J. Eq. 289. 24 Atl. 933. 31 Am. St. Rep. 702; Pifer 
V. Brown (1897). 43 W. Va. 412, 27 S. E. 399. 49 L. R. A. 497; Jones v. 
Stover (1906). 131 la. 119. 108 N. W. 112, 6 L. R. A. (N. S.) 154. 



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Pleading : Joinder of Inconsistent Counts for Single Cause 
OF Action. — In states which have adopted the reformed system of 
procedure there is uniformly a provision that the complaint shall 
state the cause of action in ordinary and concise language. It was 
thought that this provision would do away with the use of the 
common counts, but, as noted in a previous number of this Review, 
the only effect in California was to strip the common counts of 
some of their fictitious allegations.^ It was also thought that this 
section would do away with the practice of charging in various and 
usually inconsistent counts for a single cause of action.* Under the 
common law, this practice was prevalent, and to a large degree 
necessary, in order to remove the possibility of a variance. Since 
the complaint under the reformed systems of procedure need only 
state the ultimate facts upon which the plaintiff relies for his relief, 
and since variances can easily be remedied through amendments, it 
would seem that in theory the necessity for using several counts 
has wholly disappeared. 

The indiscriminate use of different counts for a single cause of 
action is not permitted by some of the so-called code states.' The 
plaintiffs in such states will be required to elect upon which count 
he will proceed. It has, however, been held that where it becomes 
advisable for the plaintiff to proceed along inconsistent theories, as 
where the facts are not known, or are peculiarly within the knowl- 
edge of the defendant, he may properly proceed against the defend- 
ant in inconsistent counts, though admittedly he has but a single 
cause of action.* 

As yet there has been no distinct adjudication in California 
that inconsistent counts may be used in all situations. Their use 
has of course been allowed where the facts were peculiarly within 
the knowledge of the defendant.*^ It has also been allowed where 
the plaintiff was reasonably in doubt as to his safety in proceeding 
by means of any one count because the facts as a whole were 
unknown to either party, and it was considered desirable to let the 

14 California Law Review, 352. 

2 "If the plaintiff have different causes of action he may of course, and 
should set them forth, but he should not set forth the same cause of action 
in different forms." Manual of Code Procedure by David Dudley Field, 
reprinted in Fairall's Cal. Code Civ. Proc. p. 333. 

»Matz V. Chicago & A. R. Co. (1898), 88 Fed. 770, "such pleading 
makes chance medley insteady of a plain and concise statement of the facts 
constituting the cause of action required by the (Missouri) Code;" Reed v. 
Poindexter (1895), 16 Mont. 294, 40 Pac. 596; Harvey v. S. P. Co. (1905), 
46 Ore. 505, 80 Pac. 1061; Sturges v. Burton (1858), 8 Oh. St 215, 72 Am. 
Dec. 582, and note. See generally. Bliss, Code Pleading (3rd. ed.) § 119; 
Pomeroy, Code Pleading, § 467. 

*Willard v. Carrigan (1902), 8 Ariz. 70, 68 Pac. 538; Vindicator etc 
Co. V. Firstbrook (1906), 36 Colo. 498, 86 Pac. 313; 10 Ann. Cas. 1109; 
Spotswood V. Morris (1904), 10 Idaho, 129, 77 Pac. 216; Jones v. Palmer 
(1855), 1 Abb. Pr. 442; Whitney v. Chicago & N. W. Ry. Co. (1870), 27 
Wis. 327. 

sRucker v. Hall (1895), 105 Cal. 425, 38 Pac. 962. 



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plaintiff avail himself of whatever the evidence produced at the 
trial might show,® or because he was uncertain as to the precise 
nature of his right under the circumstances.^ It has also been 
allowed even where the facts were apparently known to the 
plaintiff, in cases where one count in effect included another, a^ 
where a count on an express contract was coupled with one on an 
implied contract.® 

Intimations have been thrown out that the use of inconsistent 
counts would be permitted in any situation,* the most recent and 
the strongest of which is in the case of Tanforan v. Tanforatt}^ in 
which the plaintiff was forced to elect after he had presented his 
evidence and on his appeal from the judgment, attacked the order 
compelling the election. The appellant did not prevail because no 
injury could be shown on account of the fact that the evidence 
offered would not have supported the count which was rejected. In 
disposing of the case, however, the court declared that the order 
enforcing the election was erroneous, and that inconsistent counts 
could be used "when for any reason the pleader thinks it desirable 
so to do." 

The tendency of the California courts to allow the use of incon- 
sistent counts is perhaps most forcibly shown by the fact that the 
defendant has no effective means of attacking them. Such a com- 
plaint is good against general demurrer,^^ and against special 
demurrer,^^ for it cannot be shown that a particular count is uncer- 
tain by reference to another count. The plaintiff cannot be com- 
pelled to elect before the trial upon which count he will proceed^* 
because as noted above, he may at that time be in doubt as to his 
rights in the matter; nor can he under the Tanforan case be forced 
to elect upon which count he relies after his evidence is in, for he 
cannot be asked to hazard a guess as to which case he has made 
out, this being a matter for the jury or for the judge on a motion 
for a nonsuit on any of the counts.^* 

•Froeming v. Stockton R. R. Co. (1915), 171 Cal. 401, 153 Pac. 712. 

T Van Lue v. Wahrlich-Comett Co. (1910), 12 Cal. App. 749, 114 Pac. 411. 

8 Wilson V. Smith (1882), 61 Cal. 209; Cowan v. Abbot (1891), 92 Cal. 
100, 28 Pac. 213; Estrella Vineyard Co. v. Butler (1899), 125 Cal. 232, 57 
Pac 980; Remy v. Olds (1893), 4 Cal. Unrep. Cas. 240, 34 Pac. 216. 

® Stockton Combined Harvester etc. Co. v. Glens Falls Ins. Co. (1898), 
121 Cal. 167, 171, 53 Pac. 565, "Besides we see no reason why a cause of 
action arising out of the same transaction may not be separately stated in 
different ways, even though they are inconsistent with each other. The 
defendant is permitted to plead inconsistent defenses, and there can be no 
good reason why the same rule should not apply to different counts of a 
complaint as well as to the answer." Cowan v. Abbot, supra, n. 8, "Theo- 
retically there are distinct causes of action, and there is no requirement 
that they shall correspond to, or be consistent with each other." 

10 (Aug. 8, 1916), 52 Cal. Dec. 251, 158 Pac. 709. 

"Murphy y. Crowley (1903), 140 Cal. 141, 73 Pac. 820. 

^* Stockton Combined Harvester etc. Co. v. Glens Falls Ins. Co., 
supra, n. 9. 

i« Wilson v. Smith, supra, n. 8 ; Estrella Vineyard Co. v. Butler, supra, 
n. 8; Remy v. Olds, supra, n. 8. 

** Sec also Van Lue v. Wahrlich-Comett Co., supra, n. 7. 



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174 CALIFORNIA LAW REVIEW 

Convenient as the use of inconsistent counts may be in some 
situations, it must be recognized that their use is not in accordance 
with the spirit of the reformed procedure. Moreover it would 
seem that their indiscriminate use might in many cases impose an 
unnecessary burden upon the defendant. This burden, however, 
becomes more apparent than real, if, as suggested by the principal 
case, he may at the conclusion of the plaintiff's case move for a 
nonsuit on any count not adequately supported by the evidence pre- 
sented. Given this right on the part of the defendant, there seems 
no forcible reason to deny the use of inconsistent counts in all situ- 
ations, especially since the defendant always has the privilege of 
pleading inconsistent defenses.** 

M, W. 

Public Service Companies: Power of Commission to 
Compel Construction of Branch Lines. — Is a railroad com- 
pany's dedication of property to public use limited to the territory 
immediately traversed by its rails, or does it extend to outlying 
areas which cannot be directly served except by means of additional 
lines? And has power been conferred upon the Railroad Com- 
mission to compel the construction of additional lines and afford 
service in a new field under the California Public Utilities Act, 
which purports to give the Commission power to compel a public 
utility to make "additions, extensions, repairs, or improvements 
to, or changes in, the existing plant, equipment, apparatus, facilities 
or other physical property of any public utility .... to promote 
the security or convenience of its employees or the public?"* In 
Atchison, Topeka & Santa Fe Railway Company v. Railroad Com- 
mission of the State of California,^ the Supreme Court of Cali- 
fornia holds that the obligations of a railroad company do not 
extend beyond the field of original dedication and that an order 
compelling the construction of an additional line constitutes a 
taking of property and is beyond the Commission's powers. The 
Commission's order in Cabrillo Club v. Atchison, Topeka & Santa 
Fe Railway Company* is annulled. 

The complainants before the Commission sought the restora- 
tion of a line of railroad from Oceanside to Temecula, a portion 
of which, approximately twelve miles in length extending from 
Fallbrook to Temecula, had been abandoned for more than twenty 
years. Such an abandonment with the consent of the state works 
a forfeiture of all rights and necessarily destroys correlative obli- 
gations.* Accordingly, upon the facts of the case, the issue is 

"Bell V. Brown (1863), 22 Gal. 671; Banta v. Siller (1898), 121 Gal. 
414, 53 Pac. 935; Eppinger v. Kendrick (1896), 114 Gal. 620, 46 Pac 613. 

1 Public Utilities Act, § 36, Gal. Stats. 1915, pp. 115, 134. 

2 (Oct. 23, 1916), 52 Gal. Dec. 485, 160 Pac. 828. 
» (1915), 8 Gal. Rr. Gomm. 74. 

*Home Real Estate Go. v. Los Angeles Pacific Go. (1912), 163 Gal. 
710, 126 Pac. 972; Public Ser. Gomm. v. Philadelphia, B. & W. Rr. Go. 
(1914), 122 Md. 438, 89 Atl. 726. 



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COMMENT ON RECENT CASES 



175 



clearly presented as to the power of the Commission to compel 
the construction of a new branch line. The Commission's assertion 
of this authority was rested upon the provisions of Section 36 
of the California Public Utilities Act. 

The validity of the power which the Commission sought to 
exercise turns upon the scope of the railroad company's dedication 
to public use. Within the field of dedication, the regulative 
authority has ample freedom of action. Improved train service 
may be required,*^ as may switching connections between railroads.® 
A passenger station may be ordered built/ or even double tracks 
along a street already occupied by a single track may be required 
to be constructed.® Requirements of this character represent a 
legitimate exercise of the police power. Of a totally different 
character, however, is an order compelling extension and service 
in a field not embraced within the limits of original dedication. A 
railroad corporation does not, by virtue of its public undertaking, 
forfeit control over the limits of its enterprise ; it may still determine 
the essential scope of its operations. Although orders to extend their 
mains and lines have been given to water, gas, and telephone 
companies^ such extensions have only been ordered within a certain 
district to which service was already tendered, such as a city, and 
no extension can be ordered to a new territory beyond that offered 
to be served.® 

The error of the Commission consists in the assumption that 
the power to regulate within the field of the tender of service 
comprehends authority to compel extensions in a distinct field not 
covered by the original dedication to public use. A similar error 
on the part of the Commission was corrected by the Supreme 
Court in Del Mar Water Company v. Eshleman.^® 

/. L. K. 

Statutory Construction: Repeal by Implication. — The 
Code of Civil Procedure gives a right of action generally to the 
representatives of any person, not a minor, whose death has been 
caused by the wrongful act or neglect of another.* This section, 
however, can apply only where the decedent would himself have 
had a right of action for the injury, so that until 1907 an employer 



»Mo. Pac. Rr. Co. v. Kansas (1910), 216 U. S. 262, 54 L. Ed. 472, 30 
Sup. Ct. Rep. 330. 

•Wisconsin, Minn. & Pac. Rr. v. Jacobson (1900), 179 U. S. 287, 45 L. 
Ed. 194, 21 Sup. Ct. Rep. 115. 

7 Minneapolis & St. Louis Rr. Co. v. Minn. (1904), 193 U. S. 53, 48 L. 
Ed. 614, 24 Sup. Ct. Rep. 396. 

« Phoenix Ry. Co. v. Geary (1915), 239 U. S. 271, 36 Sup. Ct. Rep. 45. 

• 1 Wyman, Public Service Corporations, p. 672 ; Lukrawka v. Spring 
Valley Water Co. (1915), 169 Cal. 318, 146 Pac. 640; Crouch v. Arnett (1905), 
71 Kan. 49, 79 Pac. 1086; Del Mar Water Co. v. Eshleman (1914), 167 Cal. 
666, 140 Pac. 591. 

10 Supra, n. 9. 

1 Cal. Code Civ. Proc.. § 377. 



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176 CALIFORNIA LAW REVIEW 

was not liable for the death of an employee where he might avail 
himself of the defense of assumption of risk or of the fellow ser- 
vant rule.* In that year section 1970 of the Civil Code was 
amended so as to deprive the employer of these defenses in certain 
specified cases, and to provide that "when death .... results 
from an injury to an employee received as aforesaid, the personal 
representative of such employee .... may recover damages .... 
on behalf of the widow, children, dependent parents, or dependent 
brothers and sisters, in the order of precedence named," thus 
restricting recovery to dependents. In Gonsalves v. Petaluma and 
Santa Rosa Railway Company^ the Supreme Court held that this 
amendment is conclusive only in cases in which the employee's 
right of action is created by it, and that in such actions by the 
representatives of employees as were maintainable before the 
amendment was passed, the general provisions of the Code of Civil 
Procedure are still in force, so that in those actions a recovery may 
be had on behalf of parents without showing dependence. 

The contention that section 1970 had abrogated the earlier sec- 
tion in all suits brought by the representatives of employees seems 
to have been based upon the theory that a special law will prevail 
over a general law treating the same matter;* but the application 
of this principle must plainly be subject to the broader rules that 
"legislative intention is the first principle of statutory construc- 
tion,"* and that the legislature will not be presumed to have 
intended a repeal where none is expressed, unless the provisions 
of two acts cannot be reasonably construed together without repug- 
nance.® It is apparently upon this ground, supported by similar 
decisions in other jurisdictions,^ that the court held that section 
1970 should be construed with and not as superseding the general 
provision of the Code of Civil Procedure. The court says, "There 
is no language in our law which prompts, much less which forces 
the view that the legislature thus designed to restrict this right of 



2 See Gal. Civ. Code, § 1970, as it stood before 1907. 

» (Aug. 5, 1916), 52 Gal. Dec. 247. 159 Pac 724. 

*See the decision of the principal case in the District Court of Appeal 
(Nov. 5, 1915), 21 Gal. App. Dec 640. 

« Daniels v. State (1898), 150 Ind. 348, 50 N. E. 74; Sutherland, Statu- 
tory Construction, § 276 et seq. 

« Daniels v. State (1898), 150 Ind. 348, 50 N. E. 74; Lawrence v. Town 
of Mansfield (1911), 129 La. 672. 56 So. 633; Pattinson v. Flayer (1909). 
158 Mich. 56, 122 N. W. 215; State v. Gosgrave (1909). 85 Neb. 187. 122 
N. W. 885; McGavisk v. R. R. Go. (1869), 34 N. J. Law 509; Davis v. 
Knights of Honor (1900), 165 N. Y. 159, 58 N. E. 891; State v. County 
Court (1909), 54 Ore. 255, 101 Pac. 907; Isham v. Bennington Iron Go. 
(1847). 19 Vt. 230; Hartig v. City of Seattle (1909), 53 Wash. 432. 102 
Pac. 408; Sutherland, Statutory Construction, § 275 et seq. 

TGolorado Milling and Elev. Co. v. Mitchell (1899), 26 Colo. 284. 58 
Pac. 28; Ciohen v. Texas Pac. Ry. (1876), Fed. Gas. 5506; Chiara v. 
Stewart Mining Go. (1913), 24 Idaho 473, 135 Pac. 245; Payne v. N. Y. etc 
R. Go. (1911), 201 N. Y. 436, 95 N. E. 19; Staats v. Twohy Bros. Go. 
(1912), 61 Ore. 602, 123 Pac. 909; St. (krmain v. Potlatch (1913). 76 
Wash. 102. 135 Pac 804. 



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COMMENT ON RECENT CASES 177 

action (that given by the Code of Civil Procedure) in cases where 
the death of an employee had been negligently caused;" that is, in 
cases where the right existed before section 1970 was amended. It 
would seem that the court might have gone further and found 
language which explicitly negatives the existence of such a design, 
for the application of the amendment is by its terms expressly 
limited to cases in which "death results from an injury to an 
employee received as aforesaid." This phrase "received as afore- 
said" seems to indicate that the legislature was simply providing a 
remedy in those causes of action w!hich it had just created in the 
first part of the enactment. 

C. A. R, 

Torts: Spite Fence. — ^There is much divergence of judicial 
opinion as to the liability of the owner of land for using it, not for 
any benefit to himself, but purely to the detriment of his neighbor. 
Some states hold that an owner may erect on his land, near the 
boundary, an abnormally high fence, not for any advantage of his 
own, but merely to darken his neighbors' windows or to obstruct 
the view.* The courts which deny compensation for the damage 
inflicted by spite fences proceed upon the assumption that the 
owner of land, by virtue of his ownership, has an absolute right to 
erect such a fence. As Ames points out,^ "If, in truth, the owner's 
right is absolute in this respect, how can it be taken away from 
him by statute? 

The immunity from liability for maintaining spite fences prob- 
ably exists in England. "No use of property which would be legal 
if due to a proper motive can become illegal because it is prompted 
by a motive which is improper or even malicious."* On the other 
hand in France and Germany the owner is liable in tort.* 

In the United States an opinion by Mr. Justice Morse* marks 
the banning of the trend of authority away from the traditional 
view and holds that if an owner makes such an obstruction as a 
fence with the intention of injuring his neighbor, and without any 
advantage or benefit to himself, it is a nuisance for which his 
neighbor has a right of action. While Justice Morse's opinion was 
not concurred in by a majority of the court it has been followed 
since in Michigan.' A number of jurisdictions now hold that an 
adjoining landowner may sue for damages caused by, or may 
enjoin the erection or maintenance of a spite fence erected for the 



1 Russell V. State (1904). 32 Ind. App. 243, 69 N. E. 482; Bordeau v. 
Greene (1899), 22 Mont 254, 56 Pac. 218; Brostrom v. Lauppe (1901), 179 
Mass. 315, 60 N. E. 785; Mahan v. Brown (1835). 13 Wend. 261. 

*Tort Because of Wrongful Motive, 18 Harvard Law Review, 411, 415, n. 

« Mayor v. Pickles [1895] App. Cas. 587. 

* 18 Harvard Law Review, 414. 

» Burke v. Smith (1888), 69 Mich. 380. 37 N. W. 838. 

«Peck v. Roe (1896). 110 Mich. 52, 67 N. W. 1080; Flaherty v. Moran 
(1890). 81 Mich. 52. 45 N. W. 381, 8 L. R. A. 183. 



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178 CALIFORNIA LAW REVIEW 

sole purpose of injuring him in the lawful and beneficial use of his 
property.^ 

An Oklahoma case, Hibbard v. Halliday,^ accords with this 
modem view. The court says that property in land must be con- 
sidered for many purposes, not as an absolute, unrestricted domin- 
ion, but as an aggregation of qualified privileges. The right to use 
one's own property for the sole purpose of maliciously injuring 
another is not one of the immediate and indestructible rights of 
ownership. 

In California the matter is regulated by statute. An Act of 
1885 prohibited the erection of any fence or partition wall exceed- 
ing ten feet in height, without a permit from the board of super- 
visors or city council of the city or town, and also provided that 
the consent of the adjoining owner should be obtained be- 
fore such permit is granted." No mention is made of malice, 
but in 1913 an Act was passed remedying this defect. This 
provided that "Any fence or other structure in the nature of a 
fence, unnecessarily exceeding ten feet in height, maliciously 
erected or maintained for the purpose of annoying the owner or 
occupants of adjoining property, shall be deemed a private 
nuisance.^® 

Similar statutes have been enacted in various jurisdictions,^^ 
and such statutes have been held to be within the limits of the 
police power^* and constitutional.^* In order to bring an obnoxious 
fence within the provisions of such a statute, and to avoid consti- 
tutional objections, the malicious intent must be so predominate as 
to give character to the fence, and it must be manifest that its 
real usefulness will be clearly subordinate and incidental.^* 

F. H. W. 

Torts: Vendor's Liability to Sub- Vendee: Proximate 
Cause. — An oil company sold cans of mixed kerosene and gasoline 
to a grocer. Should the oil company be liable to one who pur- 
chased the mixture from the grocer and was injured by the explo- 

7Barger v. Barringer (1909), 151 N. C. 433. 435; 66 S. E. 439, 25 
L. R. A. (N. S.) 831, n., 19 Ann. Gas. 472, n.; Norton v. Randolph (1912), 
176 Ala. 381, 58 So. 283, Ann. Gas. 1915-A, 714, 40 L. R. A. (N. S.) 129; 
Kirkwood v. Finegan (1893), 95 Mich. 543, 55 N. W. 457; Smith v. Speed 
(1901), 11 Okl. 95, 66 Pac. 511; Haverstick v. Sipe (1859). 33 Pa. St. 368. 

8 (Oklahoma, June 13, 1916), 158 Pac. 115a 

®Held constitutional in Western Granite & Marble Go. v. Knicker- 
bocker (1894), 103 Gal. Ill, 37 Pac. 192. 

10 Gal. Stats. 1913, p. 342. 

" Ky., Me.. Mass., N. H., Vt, and Wash. 

i^Horan v. Burnes (1903), 72 N. H. 93, 54 Ati. 945, 101 Am. St Rep. 
670, 62 L. R. A. 602. 

isRideout V. Knox (1889). 148 Mass. 368, 19 N. E. 390. 12 Am. St. 
Rep.. 560, 2 L. R. A. 81. Such a statute was held unconstitutional in Huber 
V. Merkel (1903), 117 Wis. 355, 94 N. W. 354; Karasek v. Peier (1900), 22 
Wash. 419, 61 Pac 33. 50 L. R. A. 345. 

^* Supra, n. 13. 



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COMMENT ON RECENT CASES 179 

sion of the gasoline in a kerosene lamp? The case of Catlin v. 
Union Oil Company^ holds that the oil company is not liable 
because the grocer discovered the mistake and continued to sell 
from the stock, after testing and putting aside the cans of mixed 
gasoline and kerosene. 

The court assumes that the vendor is liable for such a mistake 
to the sub-vendee, in the absence of negligence on the part of the 
vendee. This is a tort liability, arising from a manufacturer's 
implied warranty of an article that is inherently dangerous to 
htmian life. The first important case^ following this rule applied 
it to the sale of poison, labelled as a harmless drug. Naphtha,* 
low grade petroleum,* mixtures of oil and gasoline,* gasoline 
sold for kerosene,* have all been held inherently dangerous. Some 
of the courts would require knowledge of the defect by a vendor^ 
but these courts are in a decided minority. The California case 
does not consider the question of guilty knowledge and holds that 
the vendor would be liable under ordinary circumstances. This 
is consistent with the reasoning in an earlier case* on the vendor's 
liability to a subvendee and would appear to be in line with the 
better authority. 

The decision is based on the ground that the act of the grocer 
in continuing to sell from the stock, even though he had tested the 
cans was an intervening act which released the oil company from 
liability and was the proximate cause of the accident. It would 
seem that not enough attention was given to the principle that one 
injured by concurrent acts of independent tort-feasors may recover 
from either. Their acts may not coincide in time and may differ 
in character and still be held concurrent. The Supreme Court of 
California recently gave a lengthy and well-considered opinion* on 
the question of proximate cause. In that case, a gas company had 
failed to repair leaky gas-mains for some hours after notification. 
A restaurant keeper lighted a fire in a room filled with gas and 
the plaintiff was seriously injured by the explosion. He was 
allowed a right of action against the restaurant keeper and the 
gas company or either. This case agrees with a much earlier case^® 
in California in holding that acts which differ in character and do 
not coincide in time may be held concurrent elements in constitut- 
ing the proximate cause. 

1 (Oct. 2, 1916), 23 Gal. App. Dec. 519. 

« Thomas v. Winchester (1852), 6 N. Y. 397. 

•Wellington v. Downer Kerosene Oil Co. (1870), 104 Mass. 64. 

*Elkins, Bly & Co. v. McKean (1875), 79 Pa. St. Rep. 493. 

» Standard Oil Co. v. Parrish (1906), 145 Fed. 829. 

•Ellis V. Republic Oil Co. (1906), 133 Iowa 11, 110 N. W. 20. 

^ Elkins, Bly & Co.. v. McKean, supra, n. 4. 

•Lewis V. Terry (1896), 111 Cal. 39, 43 Pac. 398, 31 L. R. A. 220, 52 
Am. St Rep. 146. 

•Merrill v. Los Angeles (}as & Elec. Co. (1910), 158 Cal. 499, 111 Pac. 
534. 31 L. R. A. (N. S.) 559, 139 Am. St. Rep. 134. 

loPastene v. Adams (1874), 49 Cal. 87. 



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i8o CALIFORNIA LAW REVIEW 

There are few cases in which the retailer of a dangerous com- 
modity sold it with a knowledge of its danger. Chief Justice White 
has suggested that even though a retailer sells gasoline mixed with 
kerosene with knowledge of the danger, the negligent manufacturer 
might still be held liable." In the case of Clement v. Crosby," 
a retailer sold inflammable stove-polish with full knowledge of its 
dangerous character. The manufacturer and the retailer were later 
held liable as joint tort-feasors for the accident resulting from the 
explosion of the stove-polish. In view of these decisions and of the 
general trend of the law, it would appear that a contrary opinion 
might have been given in the principal case. 

E. B. P. 

11 Waters-Pierce Oil Co. v. Deselms (1908), 212 U. S. 159, 53 L. Ed. 
453, 29 Sup. Ct. Rep. 270. 

" (1907), 148 Mich. 293, 111 N. W. 745. 



Book Reviews 

The Act to Regulate Commerce Construed by the Supreme 
Court. By Hubert Bruce Fuller. John Byrne & Company, Wash- 
ington, D. C. 191 5. pp. X, 585. $6.oa 

The bibliography of the Act to Regulate Commerce has become 
so extended that the field has seemed completely occupied, if not 
overcrowded. But Mr. H. B. Fuller of the Cleveland, Ohio, Bar 
has found a gap in the book shelf and has undertaken to supply it 
with a treatise on the Act as "construed by the Supreme Court." 
As the title implies, the decisions of the lower Federal courts and 
the rulings of the Interstate Commerce Commission are alike dis- 
regarded, the treatise being predicated solely upon the expressions 
of the one tribunal from whose decisions there is no appeal. The 
result is a text book of singular authority. 

A preliminary chapter is devoted to the commerce clause of the 
Constitution. This review of the constitutional aspects of the law, 
while necessarily brief, is scholarly and comprehensive. It is 
matter for comment that so much of merit could have been crowded 
within the limits of fifty-three pages. The chapter constitutes an 
effective introduction to the first section of the Act to Regulate 
Commerce. 

The order of treatment in the main text conforms directly to 
the division of the Act to Regulate Commerce, a chapter being 
devoted to each section. The mechanics of the book consequently 
add greatly to the convenience of the student and the practitioner 
desiring to ascertain the state of the decisions upon a specific para- 
graph of the statute. Extended comment upon the text itself will 
be superfluous, for, in the very nature of things, the writer could 
hope to do no more than to reflect faithfully the principles estab- 
lished by the court. Suffice it to say that the work has been intcl- 



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BOOK REVIEWS i8i 

ligently and honestly done, and that it is responsive to a definite 
need. 

A, P. M. 

Uniform Business Law. By Coleman Hall Bush. H. M. 
Rowe Co., Harlem Square, Baltimore, Md. 19 15. pp. x, 465. 
$1.10 cloth. $1.25 Buckram. 

Text books on commercial law may be divided into two classes : 
first, those which are intentionally confined in their application to 
a particular jurisdiction, and which are, therefore, unfit for use in 
any but the field which they are specially designed to coyer; and 
second, those which are of such wide scope as to be useful only as 
declaratory of general principles, and of little or no value as prac- 
tical handbooks of business law. Occasionally an effort is made to 
combine in a single work the desirable features of both classes. 
Invariably the attempt results in the production of a book which 
is, at best, unreliable in many respects, and actively misleading 
in others. 

"Uniform Business Law," by Coleman Hall Bush, provides an 
apt illustration of what has been said with respect to the conse- 
quences of attempting too much in the construction of a text book 
on commercial law. The author's endeavor has been, to use his 
own words, "to present the widest range of business law consistent 
with its intelligible statement in limited space." From the point 
of view of logical arrangement of his subject matter, and clarity 
of exposition, he has accomplished much, yet the work as a whole 
is far from satisfactory. In some instances, as for example in his 
treatment of the subject of bankruptcy (page 96), and again, of 
the liability of stockholders for corporate debts (page 305), Mr. 
Bush has given to his topic such incomplete consideration as to 
leave the reader feeling that it might better have been omitted alto- 
gether. In other instances, the effort to gather the law of all juris- 
dictions upon a particular point into a single statement has resulted 
in the enunciation of rules which are, to say the least, of doubtful 
accuracy. As typical of these may be cited the rule which the 
author lays down (page 190) to the eflfect that the Statute of 
Frauds applies to the "sale of any goods or choses in action of the 
value of fn;e hundred dollars or upwards," Further comment upon 
these points would serve no worthy purpose. In conclusion it may 
be remarked that the faults of Mr. Bush's contribution to the bibli- 
ography of commercial law should be charged in large part to a 
seeming disregard of the natural limitations of his opportunity. 
However ideal might be a system of uniform business law through- 
out the several states of the Union, such a system does not, as a 
fact, exist. 

/. U. C„ Jr. 

French Policy and the American Alliance of 1778. By 
Edward S. Corwin, Princeton University Press, Princeton, 1916. 
pp xvi, 430. $2.00 net. 



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i82 CALIFORNIA LAW REVIEW 

This scholarly volume dealing with "the one entangling 
alliance to which the United States has been a party" will be 
welcomed by every student of American history and diplomacy, 
for in it he will find an excellent and impartial treatment of a 
difficult subject. 

The author is "particulariy interested," as he tells us in his 
preface, "in emphasizing the idea that France's intervention in the 
American Revolution was motivated primarily by her desire to 
recover her lost preeminence on the Continent of Europe," and in 
pointing out that it was not merely "an episode in the British- 
French struggle for colonial dominion in the Western Hemisphere." 

A second aspect of the subject which is given prominence is 
"the embarrassment which resulted to France from the conflict 
of interest between her new ally, America, and her hereditary ally, 
Spain," a conflict which made it difficult to secure the participation 
of Spain in the first place, caused France to put a very limited 
interpretation upon certain provisions of the treaty and finally 
caused the American conunissioners to break their instructions at 
the negotiations of 1782. 

The present work can only add to the author's reputation 
for careful and constructive scholarship in the field of American 
political history. 



Books Received 



Cases in Quasi Contracts. By Edward S. Thurston. Ameri- 
can Case Book Series. West Publishing Company, St. Paul, 
Minn. 1916. pp. vi, 622. $4.00. 

Cases on the Law of Property. By Ralph W. Aigler. 
American Case Book Series. West Publishing Company, St 
Paul, Minn. 1916. pp. viii, 953. $5.00. 

Rescission of Contracts and Cancellation of Written 
Instruments. By Henry Campbell Black. Vernon Law Book 
Co., Kansas City, Mo. 1916. 2 vols. pp. xii, 1779. $15.00. 

Bankruptcy Forms. By Marshall S. Hagar and Thomas 
Alexander. 2nd Ed. Matthew Bender & Co., 109 State St., 
Albany, N. Y. 1916. pp. 963. $9.00. 

The Law of Irrigation. By Joseph R. Long. 2nd Ed. 
The W. H. Courtright Co., Denver, Colo. 1916. pp. xvi, 626. 

The Law of Wills and the Manner of Their Drafting, 
Execution, Probate, and Contest. By George W. Thompson. 
The Bobbs-Merrill Co., Indianapolis, Ind. 1916. pp. xxxii, 

1039- $750- 

The Law: Business or Profession? By Julius Henry 

Cohen. The Banks Law Publishing Co., 23 Park Place, New 
York, N. Y. 1916. pp. xxv, 415. $2.50. 



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California Law Review 



Volume V FEBRUARY, 1917 Number 3 

Undisclosed Principal in California 

ABOUT thirty cases have arisen in this state, in which the 
courts have consciously applied the peculiar doctrines that 
have developed in regard to the rights and liabilities of 
agent, principal, and third party, when the agent makes a contract 
with the third party without disclosing his principal ; and there are 
a number of other cases where the application of these doctrines 
has been involved in the result. While the cases are not suffi- 
ciently numerous or varied to furnish a complete exposition of the 
doctrine for use in all future situations, there are enough to make 
it worth while to collect and analyze them, so that those who have 
to deal with these situations in future may have the tools of prece- 
dent more readily at hand. 

It is the purpose of this article merely to display these tools 
and not to discuss the theories upon which the doctrine has been 
based any further than is necessary for its better understanding.* 
It is now firmly fixed in the law, though it gives rights to, and 
fastens liabilities upon, one who has not himself appeared as a 
party to the transaction in issue. From the point of view of the 
law of contract such a result seems anomalous.* It may be said, of 
course, that the doctrine is based upon rules peculiar to the rela- 
tionship of principal and agent, but such a statement hardly gives 
a reason. It merely states a result of judicial decision. In fact. 



^ For such a discussion, see Mechem, The Liability of an Undisclosed 
Principal, 23 Harvard Law Review, 513, 590; Lewis, The Liability of the 
Undisclosed Principal in Contract, 9 Columbia Law Review, 116; Ames, 
Undisclosed Principal — His Rights and Liabilities, 18 Yale Law Journal, 
443, also in Lectures on Legal History, 453; HuflFcut, Agency, 160; Story, 
Agency (9th ed.), § 1729. None of these learned authors have considered 
the doctrine from its practical side, except very briefly. 

* But sec Lewis, the Liability of the Undisclosed Principal in Contract, 
supra, n. 1. 



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i84 CALIFORNIA LAW REVIEW 

when Lee, C. J., in Scrimshire v. Alderton,* allowed P to recover 
from T upon a contract between A, P's agent, and T, to which 
P was most obviously not a party,* he embarked the courts upon 
an uncharted sea without any clear guiding light to steer by in 
future cases. The doctrine has, however, much to commend it 
from the business man's point of view.* To him it is unreasonable 
that the person really interested in the ordinary commercial con- 
tract should not be allowed to sue upon it directly and should not 
be liable in the first instance, — quite as unreasonable as that the 
assignee of a commercial chose in action should not be allowed in 
his own name to sue the person liable. Perhaps the business man 
is wrong, perhaps he is right; but it is suggested that just as 
the business man's point of view is the only one that satisfactorily 
furnished a test whether the relationship of two or more persons 
is that of partners,* so in cases where the rights and liabilities 
of an undisclosed principal are involved, the test to be applied 
should be that of the business man's reasonable needs. In the 
absence of any other clear-cut test, are not the courts at liberty to 
use this one? It will not be the first time that judges have bor- 
rowed from the custom of merchants, which is not law, of course, 
until sanctioned by decision.'' In fact the courts have undoubtedly 
been moved by this consideration. At any rate, notwithstanding 
the objections of its uncertainty, it is with this point of view in 
mind that the California cases are here discussed. The propriety 
of so doing is strengthened by section 2330 of the Civil Code, 
which recognizes the desirability of a short cut to immediate rights 
and liabilities between principal and third party, by providing 
that "all rights and liabilities which would accrue to the agent 
from transactions within such limit [the scope of his actual or 
ostensible authority], if they had been entered into on his own 
account, accrue to the principal." It is curious to note, however. 



8 (1742-3), 2 Str. 1182. 

^Except upon the fiction that, as A's principal, he was the real 
promisee of T,— obviously unsound, because T made but a single promise 
to A, which is enforcible by A, and can not be said to have made a second 
promise to P. Sec 9 Harvard Law Review, 507; 18 Yale Law Journal, 
444 n. 10. 

»Cf. Huffcut, Agency, 161; Mechem, Agency (2d ed.), § 1729; 9 
Columbia Law Review, 124, seq. 

« See Cox v. Hickman (1860). 8 H. L. C. 26a 

^See 10 Laws of England, 259; Pound, Readings on the History and 
System of the Common Law (2d ed.), 181, seq.; (Goodwin v. Robarts 
(1875), L. R. 10 Exch. 337. 



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UNDISCLOSED PRINCIPAL 185 

that in reaching this same result the courts in this state in many 
cases have had recourse to decisions elsewhere and have not relied 
, upon the sanction of the Code.® 

I. Principal versus Third Party. 
In cases of this sort it is assumed that the agent, A, acting 
within the limitations on the authority given him by the principal, 
P, has made a contract with T, in which T has made a promise 
to A. Of course T's state of mind, whether expressed or unex- 
pressed, with r^ard to P may be of various sorts. He may know 
that P himself is A's principal, — that is, he may know P's 
existence and also his name, or identity. In such a case, of course, 
the principal is disclosed, not undisclosed, and if in such a case, 
T, knowing all the facts, limits himself in contracting to a promise 
running to A alone, it can be argued with force that he has lim- 
ited his liability to A, and that P should not be allowed to recover 
from T in a direct action. While in this event the business man 
may see no reason why P should not hold T directly, nevertheless 
T's right to exclude P from a right of action should be recog- 
nized. It might be argued that T should insert in the contract 
some express provision excluding P from such a right and that 
the mere making of a promise to A should not be enough, but 
the law has not taken this view, probably wisely.* But to proceed 
to cases where the principal is in fact undisclosed, and to a further 
analysis of T's state of mind: suppose T knows as a fact that A 
is acting as an agent and that there is some principal behind him, 
of whose name and identity he is ignorant. It can be argued 
that T, knowing the existence of a principal, whose identity he 
might demand for the purpose of contracting with him, has, by 
making a promise solely to A, chosen to limit his liability to A. 
On the other hand we can argue that T, recognizing that A is 
only an agent, and knowing that there is someone behind him, has, 
by failing expressly to exclude such person from liability, shown 
himself indifferent to the question whether or not he shall be 
liable to P. In any event, unless the court find more than that A 



• The writer has not found any other provisions, either in the Civil 
Code or Code of Civil Procedure, bearing directly upon the rights and 
liabilities of an undisclosed principal. The section above referred to may 
be founded upon Story's dicta in Commentaries on the Law of Agency. Sec 
Civil Code of the State of California (1st ed.), 1874, 77; Story, Agency, 
(9th ed.), § 417 seq. 

»Cf. C^iandler v. Coc (1874), 54 N. H. 561. 



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i86 CALIFORNIA LAW REVIEW 

merely disclosed himself as agent, T has been held liable to P.^* 
The case does not seem to differ greatly from that where T knows 
P's name or identity, but a different result is reached. There are two 
possible explanations. First, the law in case of fully disclosed 
principals grew up under the influence of rules relating to assump- 
sit and debt, and became solidified upon the point that P cannot 
hold T, when P's name or identity is known before the pressure 
of conunercial needs had made itself felt. Such an explanation is 
historical. Second, the difference may also be explained on prac- 
tical grounds, which presumes that T is more likely to prefer a 
contract with a known principal than with his agent, and therefore, 
if T, knowing who the principal is, contracts with A alone, he 
has shown that he has not entered into a liability to P. On the 
other hand, if he does not know who P is, he has not shown that 
he does not care to be liable to that particular man. There are 
several California cases, which hold that P can hold T, even 
though T knows that A is an agent for someone.^^ To continue 
the consideration of T's state of mind: he may know that A acts 
as agent sometimes, and sometimes for himself, or he may have 
no thought at all upon the subject, or he may suppose that A is 
acting solely for himself. In deciding the question of T's liability 
to P in these cases, no distinction is made, probably correctly. Of 
course, if T's state of mind is that first mentioned, and if he 
knows the law, he necessarily knows that he is more likely to be 
sued by some unknown principal than if he supposes that A is 
acting for himself. He might perfectly well have excluded him- 
self from liability to anyone but A by expressly so providing,^* 



i<> Existence of principal unknown: Crosby v. Watkins (1859), 12 Cal. 
85; McKee v. Cunningham (1906), 2 Cal. App. 684, 84 Pac. 260; Eldridge 
V. Mowry (1914), 24 Cal. App. 183, 140 Pac. 978; Ruiz v. Norton (1854), 4 
Cal. 355, semble; Parker v. Otis (1900), 130 C:al. 322, 62 Pac. 927, semble; 
Nicholls V. Mapes (1905), 1 Cal. App. 349, 82 Pac. 265, dictum; existence 
of principal in doubt; Eddy v. American Amusement Co. (1908), 9 Cal. 
App. 624, 99 Pac. 1115, semble; dicta of general application; Ellis v. Craw- 
ford (1870), 39 Cal. 523; Wilcox-Rose Construction Co. v. Evans (1908), 
9 Cal. App. 118. 98 Pac. 83; Schader v. White (1916), 52 Cal. Dec. 385, 160 
Pac. 557. For cases in other jurisdictions, see Mechem, Agency, (2d cd.), 
§2059 n. 11; 2 C. J. 874 n. 23, where, however, no distinction is made 
between cases where the principal's existence is known and cases where it 
is unknown. 

'^^ Eddy V. American Amusement Co., supra, n. 10, semble ; cf . Eld- 
ridge V. Mowry, supra, n. 10 ; and see cases cited in preceding note as con- 
taining dicta of general application. 

12 Humble V. Hunter (1848), L. R. 12 Q. B. 310; Wise v. Marine Ins. 
Co. (1856), 23 Mo. 80, cf. Winchester v. Howard (1867), 97 Mass. 303. 



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UNDISCLOSED PRINCIPAL 187 

but if he has not done so, and if he will not be subjected to any 
more onerous burden or put in a worse position by being under 
an obligation to P, he should equally be liable whether he thinks 
A is possibly an agent, does not think at all, or thinks A is acting 
for himself only.^' 

The situations so far discussed have raised no question as to 
the nature of the act which the third party has promised to do. 
It is at once apparent that being subjected to a suit for damages by 
the principal for failure to perform his promise is quite different 
from being compelled to perform his promise to, or to accept 
performance from, the principal instead of the agent. Once T, 
to resume the nomenclature heretofore adopted, has put himself 
in the wrong, it does not matter greatly whether he is compelled 
to pay damages to P or to A, provided by making payment in ac- 
cordance with the court's judgment either to P or to A, whichever 
sues, he is imder no obligation with reference to his broken promise 
to the other. Similarly, if T's obligation is merely to pay money, 
it does not matter greatly to whom he has to pay it, in the absence, 
of course, of a stipulation that it shall be paid in a particular way 
or at a particular place. We therefore find, as we should expect, 
that no difficulty has been made in this connection in California 
cases, where T's only obligation was to pay damages or to make 
a money payment,^* except in one case. In Walton v. Davis,^' A, 
acting as agent for P, in whose employ he was, made a contract to 
supply milk to T. T broke the contract, and P sued T for dam- 
ages. The court refused to allow P to recover. The fact that T's 
liability, if any, was merely to pay damages and therefore was. 



*» Crosby v. Watkins, supra, n. 10, agent's contract made " in his own 
name, without disclosing his principal;" McKee v. Cunningham, supra, n. 
10, uncertain ; Eldridge v. Mowry, supra n. 10, existence probably unknown ; 
Ruiz V. Norton, supra n. 10, semble, existence unknown; Parker v. Otis, 
supra, n. 10, semble, uncertain; Nicholls v. Mapes, supra, n. 10, dictimi, 
where A did not explain he was buying from P ; Eddy v. American Amuse- 
ment Co., supra, n. 10, semble, existence "in doubt." See also cases cited in 
note 10, supra, as containing dicta of general application. For cases in other 
jurisdictions see 2 C. J. 874 n. 33. 

**CrosW V. Watkins, supra, n. 13, damages for failure to deliver; 
McKee v. Cunningham, supra, n. 10, purchase price; Eldridge v. Mowry, 
supra, n. 10, professional services; Ruiz v. Norton," supra, n. 10, semble, 
purchase price; Eddy v. American Amusement Co., supra, n. 10, semble, 
services as actors; Wilcox-Rose Construction Co. v. Evans, supra, n. 10, 
dictum, construction worjc. Cf. Parker v. Otis, supra, n. 10, statutory 
penalty; and Schader v. White, supra, n. 10, specific performance of a 
contract to convey land. 

" (1913), 22 Cal. App. 456, 134 Pac 795. 



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i88 CALIFORNIA LAW REVIEW 

so to speak, a neutral obligation which might just as well be per- 
formed to P as to A, was not considered by the court. The court's 
decision was based, however, on the theory that the contract 
between A and T established a relationship for the performance 
of personal services, and that such a contract necessarily excluded 
the possibility of T's being liable to anyone else. This cannot be, 
because A, by being an agent, had no ability to make a binding 
contract to be performed on his part. The contract is perfectly 
good between A and T.** Why, therefore, should not P be allowed 
to sue, when he does not call upon T to do anything different 
from what he would have had to do if A had sued? Perhaps 
the answer is that the doctrine of undisclosed principal is a business 
man's doctrine, and it is not expected or demanded by the needs 
of commerce that principals in cases like Walton v. Davis should 
have rights of action. This explanation is fortified by cases outside 
of California, where the contract was for personal services.^^ It 
seems to the writer, however, that if the doctrines of undisclosed 
principal are to be given a logical and complete effect, there is 
no very good reason why P should not recover damages, even 
though the contract was not of such a nature that he could demand 
performance to himself or that he could himself satisfactorily 
perform.^' 

The recognition of the principal as a proper party to bring 
suit is not allowed to prejudice the third party, when the latter 
has looked upon the agent as his promisee. The anomaly of per- 
mitting the principal to sue has not been carried so far as to de- 
prive the third party of coimterclaims or defenses that he might 
have had against the agent, when he did not know that the agent 
was an agent merely. In many jurisdictions this question has 
arisen when the third party, not knowing the existence of the 
principal, has had a claim against the agent which he intended to 
set off against the obligation created,^® or has subsequently become 
an obligee of the agent, intending to set off against such claim 

leSee page 196, infra. Cf. Kerry v. Pacific Marine Co. (1898), 121 
Cal. 564, 54 Pac. 89, where the agent was held liable to the third party on 
a charter party; and Jewell v. Colonial Theatre Co., (1910), 12 C^al. App. 
681, 108 Pac. 527, where the agent was held liable to the third party on a 
contract by which the third party was to appear as an actor. 

i^Eggleston v. Boardman (1877), 37 Mich. 14, dictum; Kcllcy v. 
Thuey (1891), 102 Mo. 522, 15 S. W. 62; Winchester v. Howard (1867), 
97 Mass. 303. See also 2 C. J. 875 n. 39. 

"Mechem, Agency (2d ed.), § 2067. 

i»Mechem, Agency (2d ed.), § 2077; 2 C. J. 877 n. 5^ 



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UNDISCLOSED PRINCIPAL 189 

his obligation to the agent.^® The courts work out the right to a 
set-ofF upon estoppel. The agent has the real principal's authority 
to make a contract representing himself as principal and the real 
principal will not be allowed to say that the agent was in fact only 
an agent. Of course, the elements of an estoppel are lacking when 
the third party knows the agent is only an agent.** There are no 
cases in California in which this question has arisen, but the exist- 
ence of an estoppel is recognized by section 2336 of the Civil Code, 
which provides that "One who deals with an agent without know- 
ing or having reason to believe that the agent acts as such in the 
transaction, may set off against any claim of the principal arising 
out of the same, all claims which he might have set off against the 
agent before notice of the agency." 

The question of defenses to suits by the principal has arisen in 
decided cases in another connection, and it has been held that 
third party may rely upon a payment made to the agent.** 

Of course other examples of defense may occur in future. One 
true rule for determining their validity, it is submitted, is that 
already indicated: the principal's right to sue, being anomalous, 
and for the purpose of a short cut, should never be allowed to 
permit him to deprive a third party, who has contracted with an 
agent as principal, of such defenses as he would have if the agent 
were in fact the principal and sued him directly. The rule is 
fotmded on estoppel, which ordinarily does not exist when the 
third party knew that there was a principal, i. e. that the agent 
was only an agent.*' 

II. Third Party versus Principal. 

The doctrine of undisclosed principal is not limited to giving 
the principal rights, but also is applied to make him directly liable 

20 Baxter v. Sherman (1898), 73 Minn. 434, 76 N. W. 211, dictum; cf. 
Frame v. WilUam Penn Coal Co. (1881), 97 Pa. 309; 2 C. J. 877 n. 52. 
But see 2 CI. 878 n. 55; Nicholls v. Martin (1885). 35 Hun. 168. 

"Isaac (Jooke & Sons v. Eshelby (1887), L. R. 12 A. C. 271; Ex 
parte Dixon (1876), L. R. 4 Ch. D. 133; Baxter v. Sherman, supra, n. 20, 
dictum. See also Mechem, Agency (2d ed.), § 2079; 2 C. J. 878 ns. 57-61. 
But see note 49, infra. Of course, if at the time the claim to a set-off 
arises, the third party has learned of the principal's existence, the elements 
of an estoppel are lacking. 

"Argenti v. Brannan (1885), 5 Cal. 351; Lumley v. Corbett (1861), 
18 (3al. 494. In the former case there is a dictum that payment could be 
made even after knowledge of the agency. In some cases, of course, such 
a result may be justified on showing that the agent's powers included power 
to receive payment. 

*»Sec Ruiz V. Norton, supra n. 10; 28 L. R. A. (N. S.) 227 n., 231 n. 



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I90 CALIFORNIA LAW REVIEW 

to the third party, not only in cases where the third party knew 
of his existence, but also in cases where the third party did not 
know he existed and contracted with the agent as principal. In 
these cases it is assumed, necessarily, that A, the agent, acting 
within the limitations on his authority, has made an enforceable 
promise to T, who either does not know that P exists or dse 
knows that there is some unknown person for whom A acted. In 
California P has been held liable to T in each of these two 
situations.'^ The result is, needless to say, as anomalous as that 
which permitted P to sue, but is firmly fixed in the law," and to 
the same extent has the needs of the business world behind it In 
the same way, too, when T does in fact know P's identity he can- 
not hold him, — ^perhaps on the theory that knowing his identity 
and taking the personal promise of the agent instead, he can be 
said to have excluded him from liabiUty.** 

In these cases, also, the illogicality on contractual theories of 
the remedy permitted gives rise to difficult questions in connection 
with defenses. Here the California law is singularly lacking 
in view of the number of cases upon other points. 

Perhaps the most difficult situation is that which arises when 
the principal, counting on the fact that the third party has 
contracted with the agent only, settles with the latter. When under 
such circumstances should he nevertheless be chargeable by the 
third party? This is not a question which has arisen in this state 



2* Existence of principal unknown: Thomas v. Moody (1881), 57 CaL 
215; Goss v. Helbing (1888), 77 Cal. 191, 19 Pac 277; Dashaway Associa- 
tion V. Rogers (1889), 79 Cal. 211, 21 Pac 742; Bradford v. Woodworth 
(1895), 108 Cal. 684, 41 Pac 797; Curran v. Holland (1903). 141 Cal. 437, 
75 Pac. 46; McKee v. Cunningham, supra, n. 10; Jewell v. Colonial Theatre 
Co., supra, n. 16, probably; Montgomery v. Dom (1914), 25 Cal. App. 666^ 
145 Pac 148, probably; Sims v. Frew (1914), 24 Cal. App. 725, 142 Pac 
106; Puget Sound Lumber Co. v. Krug (1891), 89 Cal. 237, 26 Pac 902, 
dictum; existence of principal probably known: Alta Planing Mill Co. v. 
(Garland (1914). 167 Cal. 179, 138 Pac 738; Schader v. White, supra, n. 10; 
uncertain whetner principal known or unknown: Estrella Vinyard (To. v. 
Butler (1899), 125 Cal. 232, 57 Pac 980, dictum; Schindler v. Green (1905), 
7Cal.Unrep.Cas. 229,82 Pac 341. See Ellis v. Crawford (1870), 39 Cal. 523, 
for a dictum of general application. The dictum of Sawyer, Jf., in Sayer 
v.McNulty (1864),! Cal. Unrep. Cas. 130, at p. 133, is opposed to many of 
the foregoing decisions and is therefore probably no longer law. 

25 Mechem, Agency (2d ed.), §§ 1731 n. 47, 1732 ns. 50, 51; 2 C. J. 840, 
841, ns. 70-72. The principal's liability to the third party has been spoken 
of as a "(iod-send," Blackburn, J., in Armstrong v. Stokes (1872), L. R. 7 
Q. B. 598. 

"Ferguson v. McBean (1891), 91 Cal. 63, 27 Pac 518, 14 L. R. A. 65. 
See also 2 C. J. 841 ns. 7Z, 74. 



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UNDISCLOSED PRINCIPAL 191 

except in one case,*^ where, however, the court did not find a com- 
pleted settlement such as exonerated the principal from liability to 
the third party. Outside California, there seem to be two theories, 
both of which can be traced to leading English cases. One starts 
with the assumption that by the law relating to undisclosed prin- 
cipal the latter is liable to the third party, and being chargeable 
with knowledge of the law can only settle with the agent at his 
peril. The practical result of this theory is that the principal can 
only escape liability, when he has been induced by conduct or 
representations of the third party to believe that the latter does 
not intend to look to him. Such a theory, needless to say, favors 
the third party. Is it logical? It starts with the premise that the 
third party can hold the principal, and its conclusion depends on 
the validity of that rule, — ^but we have seen that the whole doc- 
trine is anomalous,'^ and, as has been already suggested, courts 
are at liberty to regard this premise as prima facie merely, and 
to decide the question from the practical standpoint of the needs of 
business men.** The second theory permits the principal to settle 
with his agent in the ordinary way,*® though of course the third 
party should be allowed to charge the principal if he notifies 
him that he intends to do so in time. It is suggested that this latter 
rule is fairer to ajl parties and better serves business needs. The 
third party unexpectedly finds himself with an extra string to his 
bow, — ^a "God-send." He has shown a willingness to look only to 
the agent There is no reason why he should be permitted to use 
that extra string to prevent the principal from settling with his 
agent in the ordinary way. It is quite apparent that in the case of 
distant factors and brokers the principal will be in serious trouble 
if he is not allowed so to do, and if he must wait till his agent 
makes settlement, for he cannot safely put the agent in ftmds. 

Of course the foregoing rules do not apply when the existence 
of the principal is disclosed, for being chargeable with knowledge 



«T Sims v. Frew, supra, n. 24, and sec Cal. Civ. Code, § 2335. 

*» Sec p. 183, infra. 

^•Hcald v. Kenworthy (1855), 10 Exch. 739, is the leading case 
standing for this doctrine. For a full discussion of both doctrines, see 
Mechem, Agency (2d ed.), § 1738-1749. It is favored by Mr. Mechem and 
also in Beaumont, The Liability of an Undisclosed Principal for (}oods 
Purchased by his Agent, 23 American Law Review, 565. See also 2 C. T. 
847 n. 14. 

••Armstrong v. Stokes, supra, n. 25; Fradlcy v. Hyland (1888), 37 
Fed. 49. See also references in preceding note and 2 C. J. 847 n. 12. 



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192 CALIFORNIA LAW REVIEW 

of his agent's acts, the principal is bound to know that the third 
party may wish to use his extra string.'^ It is to be hoped that the 
California courts when the question arises will apply the latter 
rule rather than the former. It is possible that they are bound 
to do so by section 2335 of the Civil Code, which provides that 
"If exclusive credit is given to an agent by the person dealing with 
him, his principal is exonerated by pa3rment or other satisfaction 
made by him to his agent in good faith, before receiving notice 
of the creditor's election to hold him responsible." But it is not 
clear exactly what "good faith" referred to in the statute, means. 
It can be argued with force, however, that this section contains a 
recognition of the second theory rather than the first, for cer- 
tainly the principal can act in good faith even though the third 
party has made no positive representation to him. 

While there are no California cases settling conclusivdy this 
important question, there is one case that bears on another question 
perhaps as important. How far should the third party be allowed 
to pursue one of his two remedies against agent or principal 
without prejudicing his chance to succeed on the other? The 
authorities permit no satisfactory conclusion as to what conduct 
constitutes such an election. All that can be said is that there 
may be conduct having this effect. Clearly, charging the agent 
or some other person on the third party's books ought not to be 
regarded as a binding election.** But suppose the third party has 
begun a suit against the agent before seeking to charge the principal, 
either with or without knowledge of the principal's existence?^* 
It is suggested as a fair working rule that when he was without 
knowledge of the principal's existence, he should be allowed to 
discontinue on paying ordinary l^al costs, but \f he had such 
knowledge, while it is unfair to deprive him of all right against 
the principal, he ought not to be allowed to pursue that right with- 
out paying the agent the actual expense to which the agent was 



•^Mechem, Agency (2d ed.), § 1749; but in Irvine & Co. v. Watson 
& Sons (1880), S Q. B. D. 414 this distinction is repudiated. 

«2 McKee v. Cunningham, supra, n. 10, but see the opinion of Smith, J. 

»8Cf. Puget Sound Lumber Co. v. Krug (1891), 89 Cal. 237, 26 Pac 
902, where the third party, after learning of the principal's identity, had 
proved in bankruptcy against the agent. No objection on the ground of 
election )vas made to his maintaining an action later against the prindpal, 
a right apparently admitted. ' 



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UNDISCLOSED PRINCIPAL 193 

put.*^ Suppose further that the suit against the agent goes to 
judgment. Here we have a new factor to be considered. If the 
third party has but a single right of action, that right of action is 
necessarily merged in the judgment and he cannot later pursue 
the principal, but if he has two rights of action, the rules above 
indicated could fairly be applied so long as judgment is not satis- 
fied. Has the third party one or two rights of action? As will 
be seen, the third party has an undoubted right against the agent 
on the contract as made.** He is also allowed to sue the principal. 
This can scarcely be because the law creates out of whole cloth an 
independent collateral obligation. It should go no further than 
to make the principal liable on the contract made by the agent. 
There is, then, a single obligation with two obligors, who are not 
joint obligors but probably, if the term may be used, alternative 
obligors, or at least so a business man would regard them.** 
Judgment against one merges the right of action or obligation in 
the judgment. The third party after obtaining judgment against 
the agent, whether with or without knowledge of the principal's 
existence, should not be allowed to proceed against the other.*^ 
These views, however, are merely suggested, since the whole subject 
has not been consistently worked out by judicial decision.** 

•< There is no judicial sanction for this view that the writer has been 
able to discover. The cases are in much confusion and for the most part 
decide what is not an election. 

»» See p. 194, infra. 

»« Kendall v. Hamilton (1879), L. R. 4 A. C. 504; Brannan v. Purcell 
(1884), 41 Oh. St 187, 202; cf. Morel Bros. & Co.. Ltd. v. Earl of West- 
moreland, [1902] 1 K. B. 64, affd, [1904] A. C. 11. not a case of undis- 
closed principal; see Booth v. Barron (1898), 29 App. Div. 66, 51 N. Y. 
Supp. 391. 

»^See 2 C. J. 846 ns. 6-8; 21 L. R. A. (N. S.) 786 n.; 6 L. R. A. 
(N. S.) 729 n; and particularly, Kendall v. Hamilton supra, n. 36; but in 
the following cases the existence of a doctrine of merger independent of 
the doctrine of election was in effect denied, and it was held that when 
the third party has obtained judgment against the agent without Imowledge 
of the principal, such judgment, so long as unsatisfied, is not a bar to an 
action against the principal- Lindquist v. Dickson (1906), 98 Minn. 369, 107 
N. W. 958; Grccnberg v. Pahnieri (1904). 71 N. J. L. 83, 58 Atl. 297; 
Rcmmel v. Townsend (1894), 83 Hun. 353, 31 N. Y. Supp. 985; Brown v. 
Reiman (1900), 48 App. Div. 295. 62 N. Y. Supp. 663. Beymer v. Bonsall 
(1875), 79 Pa. 298 is to the same effect, even though the third party had 
such knowledge. 

•* See the authorities cited in the preceding note and also Mechem, 
Agency (2d cd.), §§ 1750-1762; 17 Haryard Law Review, 414. In Cali- 
fornia, if the third party brings one suit against both principal and agent, 
apparently questions of election and merger have no place. See Cal. Code 
Civ. Proc, §§ 383, 427. In Jewell v. Colonial Theatre Co., supra, n. 16, in 
the same suit judgment was entered against both principal and agent, but 
apparently no objection on the ground of merger or election was made by 



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194 CALIFORNIA LAW REVIEW 

So far the discussion has related to the anomalous parts of the 
whole doctrine that has grown up around the undisclosed prin- 
jcipal. We now proceed to situations, where the question of liability 
can be worked out according to contractual rules, and the eflfect 
of the principal's liabilities or obligations is indirect. 

III. Third Party versus Agent. 

This is the simple situation where the third party, having made 
a contract with the agent, chooses to hold the agent, ignoring or 
ignorant of his claim against the principal.** In all these cases the 
questions that arise, apart from those bearing on defenses that 
will be discussed later, relate to whether or not there was a con- 
tract between third party and agent. This, of course, is a question 
of the law of contracts and not properly within the scope of this 
article, except in one particular. Let us suppose that the existence 
of a principal, but not his identity, be disclosed: it can be argued 
that the third party in such a case cannot look upon the agent as 
intending to bind himself. Such an argument has persuasive force 
iwhen the agent contracts as agent only, or when the contract is of 
such a nature that it is unlikely that the agent intended to be 
bound.^*^ But unless these added elements appear, the agent is 
liable,*^ even though the existence of a principal is known.** It 
has so been held in California.^ Such a view is obviously correct 

either defendant. In Montgomery v. Dom, supra, n. 24, where suit was 
also brought against both agent and principal, there was a dictum that 
jud^ent against the agent was no ground for objecting to a judgment 
against the principal. 

>* Cases where one is given by another such appearance of ownership 
as creates an estoppel against the other are not here discussed. Cf. 
Amann v. Lowell (1885), 66 Cal. 306, 5 Pac. 363. 

*oE. g.. Chase v. DeboU (1845), 7 111. 371: American Alkali Co. v. 
Kurtz (1905), 134 Fed 663 affd (1905), 138 Fed. 392; Southwell v. Bow- 
ditch (1876), 1 C. P. D. 374. See also 2 C. J. 818 n. 29. 

<iMechem, Agency (2d ed.), § 1410 n. 90; 2 C. J. 818 n. 30. 

« Mechem, Agency (2d ed.), § 1411 n. 92; 2 C. J. 817 n. 25; 2 L. R. A. 
812 n.; 47 L. R. A. (N, S.) 232 n. 11. 

*» Agent liable to third party: Murphy v. Helmrich (1884), 66 Cal. 69, 
4 Pac. 958 existence of principal probably not disclosed; Bradford v. 
Wood worth (1895), 108 Cal. 684, 41 Pac. 797 existence not disclosed; 
Kerry v. Pacific Marine Co. (1898), 121 Cal. 564, 54 Pac 89 where agent 
signed as "managing owner;" Jewell v. Colonial Theatre Co., supra, n. 16, 
existence probably not disclosed; Bogart v. Crosby (1889), ^ Cal. 195, 22 
Pac. 84 dicttmi, agent liable if he failed to "make known" his principal; 
Puget Sound Lumber Co. v. Krug. supra, n. 33, dictum, agent liable if 
existence of principal not disclosed; Alta Planing Mills Co. v. (jarland 
(1914), 167 Cal. 179, 138 Pac. 738, dictum, same; Nicholls v. Mapes, supra, 
n. 10, dictum, sigent liable if he does not explain he was buying for his 
principal. Cf. Schader v. White, supra, n. 10, where the court regarded 



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UNDISCLOSED PRINCIPAL 195 

in both cases. There is, of course, no reason why an agent should 
not obligate himself personally, if such be his communicated inten- 
tion. Such is usually the intention of the ordinary commercial 
agent, when he does not make it plain that he is acting for a definite 
named person. There is less difficulty, of course, in the case where 
the existence of the principal is not revealed. There, obviously, 
the communicated intention of the agent is to bind himself. 

In all these cases there coexists the liability of the principal, 
which is important in relation to defenses set up by the agent to 
such a suit. Here again there are no California cases, though 
tht situation is likely to arise. 

The first of these possible defenses is that of election and 
merger, upon which the writer's views have already been given.** 
It is suggested that in this connection it is unimportant whether it 
is principal or agent who is relying upon an election or a merger. 
The reasons for the rules are based on procedural expediency 
rather than on the merits of the issues involved. The principal is 
pot a surety, but an alternative obligor. It does not therefore 
matter whether it be he or the agent who sets up the defense of an 
election against the other, or a merger of the third party's right 
of action in a judgment against that other. There may, however, 
be this difference of fact. The case, already adverted to, where 
the third party sues one of his two alternative obligors without 
knowing of the existence of the other, can, of course, only occur 
when he sues the agent first, and therefore the case where 
he should be allowed to discontinue upon paying no more than 
legal costs is limited to the case where he so sues.*' 

Other matters of defense which the agent might set up readily 
occur; for example, payment by the principal.** 

Should the agent be allowed to set off against the third partj^' 

the case as one of undisclosed principal (but query), and the agenfs 
liability was apparently conceded, if his defenses failed. In Montgomery v. 
Dom, supra, n. 24, the court below dismissed the action against the agent, 
who signed a contract in his own name without qualification, on his show- 
ing that he contracted as agent only, although apparently there was no 
evidence the third party knew of this fact. Agent not liable: Schindler v. 
Green, supra, n. 24, semble, where third party knew the agent was an 
agent only and the contract was for work and labor; cf. Chase v. Debolt, 
supra, n. 40. 

**Sec p. , supra. See also Cobb. v. Knapp (1877), 71 N. Y. 348, 27 
Am. Rep. 51. 

40 As previously stated the writer has found no legal sanction for these 
views 

*«Sce Morrison v. Currie (1854), 4 Duer (N. Y.) 79, 84. 



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196 CALIFORNIA LAW REVIEW 

claims by the principal against the third party? This is a matter 
depending on statutory construction. If set-offs are limited to the 
parties to the suit, there should clearly be no such set-off, but if 
they can be asserted between the real parties in interest, then 
clearly a set-off should be allowed, since the right to a set-off is 
not conditioned upon knowledge by the other party that it 
exists/^ Such statutes exist in some states,** but not in Cali- 
fornia, where the statute on the subject provides that counterclaims 
must be those existing in favor of a defendant and against the 
plaintiff.". 

IV. Agent Versus Third Party. 

Here again the question of liability turns upon whether or not 
the third party made a contract with the agent as his promisee, and 
the doctrines of undisclosed principal influence the situation only 
when we come to the question of the third party's defenses. Al- 
though the law gives the principal a right against the third party 
directly, it does not do so at the expense of the agent's contrac- 
tual right.'** The doctrines of undisclosed principal are not in 
lieu of contractual rights into which the parties have let themselves. 
The agent may generally recover if a contract to him was in fact 
made.'^ 

The question of defenses next arises. 

If the third party has already paid or performed to the prin- 

*T Where the statute is in the usual form no such set-off is allowed: 
Forney v. Shipp (1857), 4 Jones Law, 527; Elwell v. Skiddy (1879). 77 
N. Y. 282. Of course, if the set-off arose out of the same transaction the 
agent may avail himself of it, as being personal to himself. See Leterman 
V. Charlottesville Co. (1910), 110 Va. 769, 67 S. E. 281; and dicta in the first 
two cases above cited, and 25 A. & E. Encyo of L. (2d ed.), 539. 

*« See 25 A. & E. Encyc of L. (2d ed.), 527 ns. 2, 3; 34 Cyc 717 n.40. 

*»Cal. Code Civ. Proc.. § 438. But cf., § 440, which provides that 
'*When cross demands have existed between persons under such circum- 
stances that, if one had brought an action against the other, a counter- 
claim could have been set up, the two demands shall be deemed compen- 
sated, so far as they equal each other. . . ." Could it not be argued that 
since the principal, if sued, could have set up a counterclaim, the third 
party's claim must be regarded as "compensated," i.e. paid, in a suit 
against the agent, so that a defense of payment could be made? If this 
argument were to prevail, it would equally apply, when a principal whose 
existence is known, sues the third party who has a counterclaim against 
the agent. Cf. note 21, supra. 

«oTustin Fruit Assoc, v. Earl Fruit C:o. (1898), 6 Cal. Unrep. Cas. 37, 
existence of principal not disclosed; Bliss v. Sneath (1894), 103 Cal. 43, 36 
Pac. 1029, semble; Eddy v. American Amusement Co., supra, n. 10, semble, 
existence of principal apparently disclosed. Cf. Phillips v. Henshaw 
(1855), 5 Cal. 509. 

"Mechem, Agency (2d ed.), § 2025 n. 10; 2 C. J. 830 n. a 



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UNDISCLOSED PRINCIPAL 197 

cipal, he should not be liable a second time to the agent. The 
principal is, of course, entitled to the benefit of the contract made 
by his agent, and his receiving these benefits discharges the third 
party of all liability. California courts would undoubtedly so 
hold." 

Suppose that the third party has a counterclaim or set-oif 
against the principal, and is sued by ihe agent. No question of 
estoppel can, of course, arise, since he could not have entered 
into this contract, relying on a set-off against one whom ex 
hypothesi he did not know had an interest in the contract. The 
question must therefore turn on the form of the statute, and if 
no set-off is allowed against the real parties in interest but only 
between the parties to the suit, it would seem clear that the 
third party can only enforce his right against the principal in a 
separate action. In California there is one case upon tins point, 
decided under section 438 of the Code of Civil Procedure.** It 
was held that the third party might set-off against the agent's 
suit a counterclaim arising out of a separate transaction against 
the principal. No mention was made of section 440 of the Code 
of Civil Procedure." The only statute under discussion was 
limited to counterclaims between plaintiff and defendant. The 
decision is hard to support. If the court had section 440 in mind, 
the court would probably have so stated. Under that section 
also, the proper pleading would, perhaps, not be of a set-off or 
counterclaim, but of payment, on the theory that the right of 
action upon which the agent relied was "compensated" or paid, 
since in a suit by the principal against the third party the third 
party could have counterclaimed. Perhaps the answer is that 
section 440 cannot be thus collaterally relied on. If so, the case 
under discussion seems doubly wrong. 

All the possible combinations of parties, in which questions 
under the doctrine of undisclosed principle may arise, have now 
been discussed,*' although it be obvious that a very great num- 



W2 C. J. 830 ns. 15, 16. 

^s Bliss v. Sneath, supra, n. 50. 

»* Sec n. 49. 

^ It is probably unnecessary to state that the doctrines of undisclosed 
principal do not apply to negotiable instruments or to instruments under 
seal in jurisdictions where the distinction between sealed and unsealed 
instruments has not been wholly abolished. Mechem, Agency (2d cd.), 
§§ 1734-6, 2064, 2065; 2 C. J. 843. 876 seq. The writer has found no CaU- 
iomia cases bearing upon the application or nonapplication of the doc- 



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198 CALIFORNIA LAW REVIEW 

ber of defenses beyond those herein mentioned may come before 
the courts.** In making their decisions, the courts have prac- 
tically a free hand, for there are few legislative enactments 
upon the subject, and they can develop the doctrine, guided 
by principle and precedent, without the confusing and compli- 
cating effect of arbitrary statute law. As Antaeus gained strength 
from mother earth, the courts in wrestling with these problems 
should remember their source and the impulse that is responsible 
for the doctrine. They are as free now as they ever were to 
look to the law merchant for guidance. It is true that any rule 
based on the understanding of business men must needs be vague, 
but the doctrine is with us to stay, bringing its vagueness with 
it, and there is no other test that is adequate. 

Austin Tappan Wright 
Berkeley, California. 

trine to negotiable instruments. The latter exception is probably unim- 
portant here: Pacific Improvement Co. v. Jones (1912), 164 Cal. 260, 128 
Pac. 404; cf. Ferguson v. Bean, supra n. 26; Bliss v. Sneath, supra, n. 50. 

^•For example: When the agent acts for several principals, tiie 
plaintiff failed to recover in Beckhusen v. Hamblet, 6 Times L. 
Kep. 278, where the third party sued the principals, and in Roosevelt v. 
Doherty (1880), 129 Mass. 501, and Midwood v. Alaska Packers Assoc. 
(1907), 28 R. I. 303, 67 Atl. 61, where one of the principals sued the third 
party. See also Mechem. Agency (2d ed.), §§ 2080-2082, defense in suits 
by principal against third party; Mechem, The Liability of an Undisclosed 
Principal, 23 Harvard Law Review 590, at 602. As to the liability of an 
undisclosed principal for unauthorized acts of his agent, see Durant v. 
Roberts, [1900] 1 Q. B. 629, criticized in 14 Harvard Law Review, 153. 



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Injunction Without Damage As Illustrated 
By a Point in the Law of Waters 

WHERE decisions conflict, there is usually sufficient interest 
to justify an attempt to find the cause. The inunediate 
topic, "change of use of water" is often litigated, and 
therefore of practical importance. Nevertheless, for our present 
purpose it is rather a vehicle to carry discussion of a larger prin- 
ciple which it illustrates, more than it is an end in itself. 

In 1857 the Supreme Court of California said: "It would 
seem clear that a mere change in the use of waters from one min- 
ing locality to another, by the extension of the ditch, or by the 
construction of branches of the same ditch, would by no means 
affect the prior right of the party."^ In i860 it further ruled : "A 
person entitled to divert a given quantity of the water of a stream, 
may take the same at any point on the stream, and may change 
the point of diversion at pleasure, if the rights of others are not 
injuriously affected by the change."* 

These pioneer decisions, one upholding change of place of use, 
and the other change of point of diversion, are the beginning from 
which the principle has run through the law of prior appropria- 
tion of water that an appropriator may change his use — (manner 
of use, place of use, purpose of use or point of diversion) — ^"if 
others are not injured by the change." It has usually passed into 
statute.* In 1910 in Colorado the point of diversion is said to be in 
itself a "mere incident,"^ and in 1914 in the same jurisdiction it is 
said: "We are committed to the doctrine that the point of diver- 
sion, the conduit, the place of application and the character of use 
may each and all be changed;"* and this was again repeated but 
a few months ago.^ 

The test is always added, that others must not be injured by 
the change. The statement in Kidd v. Laird, the original prece- 



iMacris v. Bicknell (1857), 7 Cal. 261, 263. 
«Kidd V. Laird (1860), 15 C:al. 161, 179. 

• For example, Cal. Gv. Code, § 141^ 

* Windsor Co. v. Hoffman Co. (1910), 48 Colo. 82, 109 Pac 422. 
•Ironstone D. Co. v. Ashcnfelter (1914), 57 Colo. 31. 140 Pac 177. 
•Arnold v. Roup (Colo. 1916), 157 Pac 206. 



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200 CALIFORNIA LAW REVIEW 

dent, is that "In all cases the effect of the change upon the rights 
of others is the controlling consideration." It has been universally 
accepted and restated.^ 

But the test thus given has not turned out as easy as it 
seemed. It has received widely variant interpretations. It is 
even coming to nullify the rule itself. 

It invites a long-standing controversy in the law. What is 
such an "injury" as will prevent the change.** If it means a 
present and immediate damage it is easy enough to apply, and is 
often so applied ; or even if the harmful result of the change may 
not be immediate, it may, after delay, be sure to come; here also 
the test is easy enough to apply. But there is the far greater 



^ The statement that the decisive test is whether the change will or 
will not injure others, is repeated in the authorities given in Wiel, Water 
Rights in the Western States, (3d ed.)> Chapter ^, and the following 
authorities since decided: 

California: Cheda v. Southern Pacific Co. (1912), 22 C:al. App. 373. 134 
Pac. 717, (point of diversion) ; Barton v. Riverside Co. (1909), 155 Cal. 
509, 101 Pac. 790, 23 L.R.A. (N.S.) 331 (point of diversion.) 

Colorado: Vogel v. Minnesota Co. (1910), 47 Colo. 534, 107 Pac 
1108; New Cache etc. Co. v. Water Supply Co. (1910), 49 Colo. Ill 
Pac 610, (point of diversion) ; Larimer Co. v. Poudre Valley Co. (1912), 
23 Colo. App. 249, 129 Pac. 248, (point of diversion); Farmers Co. v. 
Wolff, (1913), 23 Colo. App. 570. 131 Pac 291, (point of diversion); Mon- 
tevista Co. v. Centennial Co. (1913), 24 Colo. App. 496, 135 Pac 981, (point 
of diversion) ; Ironstone Ditch Co. v. Ashenfelter (1914), 57 Colo. 31, 140 
Pac 177, (place of use) ; Consolidated Co. v. Town of Evans (1915). 59 
Colo. 482, 149 Pac 834. (point of diversion) ; Phillips Investment Co. v. 
Cole (1915). 150 Pac 331, (purpose of use) ; Rogers v. Nevada Canal 
Co. (Colo. 1915), 151 Pac 923, (place of use); Greeley Co. v. Huppe, 
(Colo. 1915), 155 Pac 386; Arnold v. Roup (Colo. 1916), 157 Pac 206, 
(place of use). 

Idaho: Bennett v. Nourse (1912). 22 Idaho, 249, 125 Pac 1038, (point 
of diversion) ; Hall v. Blackman ri912), 22 Idaho 556. 126 Pac 1047, (place 
of use) ; Joyce v. Rubin (1913), 23 Idaho. 296. 130 Pac 793, (point of 
diversion) ; Washington Sugar Co. v. (Goodrich (Idaho. 1915), 147 Pac 
1073, (point of diversion). 

Montana: Featherman v. Hennessey (1911), 43 Mont. 310, 115 Pac 
983, (purpose of use); Hansen v. Larsen (1911), 44 Mont 39, 120 Pac 
229; Lokowich v. City of Helena (1913), 46 Mont 575, 129 Pac 1063, 
(point of diversion). 

Nevada: Doherty v. Pratt (1912), 34 Nev. 343, 124 Pac 574. 

Oregon: Amalgamated Sugar Co. v. Hempc (1915), 226 Fed. 1012. 
(point of diversion); In re Willow Creek (1914). 74 Ore. 592. 144 Pac 
505. (place of use) ; In re North Powder River (1914), 74 Ore. 83. 144 
Pac. 485. (place of use and point of diversion). 

Washington: United States v. Union (jap Irrigation Co. (Wash. 
1913), 209 Fed. 274; Mally v. Weidensteiner (Wash. 1915), 153 Pac. 342, 
(point of diversion). 

Wyoming: Nichols v. Hufford (1913), 21 Wyo. 477. 133 Pac 1084 
(place of use) ; Groo v. Sights (Wyo. 1913). 134 Pac 269. (point of diver- 
sion) ; Holt V. City of C:heyenne (Wyo. 1914). 137 Pac 876 (point of 
diversion). 



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INJUNCTION WITHOUT pAMAGE 201 

field where, althottgh the change is no immediate harm, nor sure 
to come, it may be impossible to say whether it will come or not. 
It may come and it may not come; no one can be sure. Is this 
risk to be forced upon the owner in such cases for the benefit of 
one who is changing the status quo? Is the owner "injured" by 
having that risk imposed upon him for the benefit of a disturber 
of the established order? 

The test of "injury to others" opens into this wide field, into 
which the limitless future enters, as to what may happen. To 
answer it, the party wanting to change must say, "I will not harm 
you even in the future; harm from my change not only will not 
occur now, but will never occur. Damage from the change is 
impossible," That is a great length to go. What may or may not 
happen in the future only one with the gift of prophesy can prove. 
Just as soon as impossiblity of damage theoretically enters as a 
factor, it is again cast out because of the impossibility of following 
it up. In mathematics quantities are dealt with which grow 
always smaller as they are traced further, never entirely disappear- 
ing, but dwindling finally to a limit beyond which they are so 
infinitesimal that they must be disregarded. If "impossibility of 
damage" is a theoretical basis for denial of an injury, yet inability 
to determine it makes it finally, in the last analysis, as good as 
gone. Change becomes per se an injury. 

Upon this basis rests the doctrine known as ''injuria sine 
damno." It is the doctrine that protects owners against even the 
risk of loss from acts of another who changes the status quo. 
And it is working into the topic of change of water uses, turning 
the rule of change, if without "injury," into rule that change is 
per se an injury and may not be made. 

Movement toward this position seems going forward in Colo- 
rado by putting upon the changer the burden of proving affirma- 
tively that there will be no injury. There is an early ruling in 
California, followed in Montana, putting the burden upon the 
party opposing the change,* and Colorado also was formerly 
strong in upholding changes. But it now demands "strict adher- 
ence to the rule that the burden of proof of showing that injury 
will not result is upon the person seeking judicial authority for 



•Jacob v. Lorcnz (1893), 98 Cal. 332, 33 Pac. 119; Hansen v. Larsen, 
supra, n. 7; Lokowitch v. City of Helena, supra, n. 7. 



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202 CALIFORNIA LAW REVIEW 

the change."* And it seems now so enacted in a California 
stetute.*^ 

Under the form of burden of proof, or a rule of pleading and 
evidence, this, if logically applied, eliminates from change the 
greatly predominant class of cases, already mentioned, where the 
result of the change cannot be told in advance. Proof of the aser- 
tion of "no possible injury" is a burden which, strictly applied, will 
be itself impossible. It must cover the future, since title to prop- 
erty lasts forever ("to have and to hold unto his heirs and assigns 
forever"). The most that the party making the change can prove 
about the future is that, in view of the past experience, damage 
may be so remote that its possibility is beneath serious notice. But 
that gives him only the residue within the rule "de minimis non 
curat lex." It leaves to him only the extreme instances where 
chance of damage appears to be absolutely trivial. 

Putting upon the changer the burden of disproving possible 
injury thus restores the familiar ground long recognized in equity 
jurisdiction that impossibility to measure damages is cause for 
equity to act by injunction to prevent interference with existing 
conditions. Equity, refusing to force a property owner to assume 
a risk, declares that "impossibility to estimate damage" is of itself 
sufficient cause to grant its injunction against the act complained of. 

Colorado seems therefore coming, through the burden of proof, 
to injunction without damage; enjoining the change simply to 
vindicate ownership against even the chance of damage; the rule 
that any change is an injury per se, unless the prospect of damage 
is so remote and absolutely trivial as to be within the rule "de 
minimis non curat lex." In fact, the Supreme Court of Colorado 
expressly puts the burden of proof this way against the changer 
because he "disturbs the existing order,"** which is the ultimate 
basis of the rule "injuria sine damno;" the injunction being simply 
to preserve existing conditions and enable the owner to say, 
"things shall remain as they are." 

The rule that change is per se an injury is approached in 
another way by the holding that a certain very common type of 



•Farmers etc. Co. v. Wolff, supra, n. 7. Accord, Montevista Co. y. 
Centennial Co., supra, n. 7; New Cadie etc., Co. v. Water Supply Co., 
supra, n. 7. There is something of the same view in a Wyoming case, 
Groo V. Sights, supra, n. 7. 

loCal. Stats. 1913, p. 1012, § 16. 

i*Ncw Cache etc Co. v. Water Supply Co., supra, n. 7. 



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INJUNCTION WITHOUT pAMAGE 203 

interference is prohibited; namely, loss of return flow from the 
changer's ditches, flumes, or other works, or loss of return 
seepage to the stream from irrigated lands. Such loss so fre- 
quently, upon settled streams, attends any substantial change in 
point of diversion or in the locality or quality of lands irrigated 
or in the purpose of use (as from water power to irrigation), that 
little opportunity for change remains without it where the other 
water users in the locality are numerous. In a Colorado case 
it is said of an attempt to move a point of diversion up stream, 
that "all ditches between the two points of diversion can be and 
have been supplied in a large measure by return waters which 
there make up the body of the stream; and therefore the change 
in point of diversion must necessarily injure the ditches further 
up the stream to the full extent of the amount changed during a 
considerable portion of the irrigation season."^* Of the great 
extent of the operation of this in practice, it has been declared: 
"Changes in location affect return seepage, and if permitted would 
makes all water titles unstable."^* That this loss of return water is 
a prohibited injury and prevents change is established." 

That change is per se an injury is entering also upon the line 
of public policy. The Court of Appeal in Colorado says that 
change of point of diversion has become an excuse for renewing 
old claims that have never been used, and encourages speculation 
in such claims, resulting in irreparable loss to bona fide users. 



" Farmers etc. Co. v. Wolff, supra, n. 7. 

»»U. S. Geological Survey Water Supply, paper 344. page 136. 

"California: Kidd v. Laird (1860), 15 Cal. 161; Dannebrink v. 
Burger (1914), 23 Cal. App. 587, 138 Pac. 751, (loss of return seepage 
from leaking ditches and flumes); Pomona Co. v. San Antonio Co. (1908), 
152 Cal. 632-633, 93 Pac. 881, (loss of return seepage from irrigated lands). 

Colorado: Larimer Co. v. Poudre Co. (1912), 23 Colo. App. 249, 129 
Pac. 248, (loss of return seepage); Montevista Co. v. Centennial Co. 
(1913). 24 Colo. App. 496, 135 Pac. 981, (loss of return flow) ; Farmers 
etc. Co. V. Wolff (1913). 23 Colo. App. 570, 131 Pac. 291, (loss of return 
seepage from irrigated lands); Fort Collins Co. v. Larimer Co. (Colo. 
(1915), 156 Pac. 140, (loss of return seepage.) 

Idaho: Bennett v. Nourse (1912), 22 Idaho, 249, 125 Pac. 1038, (loss 
of return seepage); Hall v. Blackman (1912), 22 Idaho, 556, 126 Pac. 
1047, (loss of return seepage from irrigated lands) ; Washington Sugar 
Co. V. Goodrich (Idaho, 1915)^ 147 Pac. 1073, (loss of return flow by 
change from sawmill to irrigation.) 

Montana: Featherman v. Hennessey (1911), 43 Mont. 310, 115 Pac 
983, (loss of return flow by change from power to irrigation.) 

Oregon: In re North Powder River (1914), 75 Ore. 83, 144 Pac. 
486^ (loss of return flow by change from water power to irrigation.) 

Washington: U. S. ▼. Union Gap Co. (1913), 209 Fed. 274, (loss 
of return now.) 



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204 CALIFORNIA LAW REVIEW 

and its effect has been vicious.^* In California the legislature has 
joined the current of legislation by prohibiting change of point 
of diversion except upon investigation and permission from State 
officials." Of change of place of use on a sale, the Supreme Court 
of Oregon says that any surplus over the initial use of the prior 
appropriator belongs to other existing users, and change by sale 
for use on other lands is against the tendency of law/^ And 
in another case the same Court says: "In the arid states the 
principle is gaining ground 'that the right to use the water for 
irrigation inheres in the land irrigated/ and is inseparable there- 
from or separable only with permission of the water board or like 
authority/'^* In Wyoming a statute was made to read, "Water 
rights cannot be detached from the lands, place or purpose for 
which they are acquired, without loss of priority."" Of change 
of purpose of use, a California Statute now reads, "Water .... 
appropriated or acquired for one specific purpose shall not be 
deemed to be appropriated or acquired for any other or different 
purpose."*® This widening application, to all classes of change, of 
the rule that a change is of itself an injury is urged in the field 
as the progressive and advanced doctrine. It is said that "changes 
from one purpose to another without loss of priority should be 
prohibited as against public policy, because different amounts of 
water are consumed in different uses. Most changes seriously 
affect other rights below."*^ 

Complete recognition of the rule "injuria sine damno," whereby 
change of the status quo is an injury per se to existing owners, 
is in entire possession of the class of cases involving change of 
structures (such as a ditch, flume, dam, road) upon another's land. 
This is an injury per se that will be enjoined at the landowner's 
request without a showing of actual damage. Even though the 
easement for the structure was acquired while the land was still 
public, yet after the land upon which the structure lies has become 
private any change is per se an injury to such landowner, because 



"Farmers Co. v. WolflF (1913). 23 Colo. App. 570. 131 Pac. 291. 

"Cal. Stats. 1913. p. 1012. § 16. 

"In re North Powder River (1914). 75 Ore. 83. 144 Pac 486. 

win re Willow R. (1914). 74 Ore. 592. 144 Pac 505. Sec also Qay- 
pool v. O'Neill (1913), 65 Ore. 511. 133 Pac. 349. 

i»See Groo v. Sights (Wyo. 1913). 134 Pac 269, holding that this does 
not prohibit change of point of diversion. 

«oCal. Stats. 1913. p. 1012, § 39. Sec also §§ 11. 17. 20. 23. 33. 39, 41. 

21 U. S. Geological Survey Water-Supply Paper, 344, page 135. 



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INJUNCTION WITHOUT DAMAGE 205 

an owner of land has the absolute right to keep it in the condition 
that he got it. A strong ruling to this effect is quoted in the note, 
and is in accord with general authority at this time.** Nor is there 
room for a contention that the change would be a benefit rather 
than a detriment to the landowner; he has the right to be his own 
judge of that or he would cease to be master of his own prop- 
erty.** 

Exceptions must be noted. 

Rights of action for change of the status quo belong to the 



''"That a change in the mode of enjoyment might have been made 
while the government still owned the servient tenement does not alter the 
case. That was because the owner of the servient tenement — the government 
— had accorded a license through the statute to appropriate any such 
rights at any time prior to the grant of patent or allowance of homestead 
or preemption. But, when the government granted the fee, it granted it 
subject not to the license, but to vested and accrued rights which had then 
been acquired under the license. By the grant the title to everything not 
then appropriated became vested in the respondents as completely as the 
appropriated rights had become vested in the appellant. Thereafter the 
jus disponendi incident to the fee was in respondents as to every right 
not vested in others by actual prior appropriation. The manner of diver- 
sion, the length and location of the right of way, the means of conveyance 
of the water over the right of way — in short, the easement — ^became fixed 
and determined by the facts as they existed when respondents' homestead 
entry was allowed. No change can now be made in the character of the 
servitude. A pipe line cannot be substituted for a ditch and Hume, nor 
the right of way changed or lengthened. As to these things the authori- 
ties are uniform." White Bros. v. Watson (1911), 64 Wash. 666, 117 Pac. 
497, citing inter alia Wiel, Water Rights in the Western States (2d ed), op. 
285, 286, § 179-180. See also Wiel, Water Rights (3d ed.), § 221 et seq.. 
499; and the following authorities since decided: 

California: Brown v. Ratliff (1913), 21 Cal. App. 282, 131 Pac 769. 

Colorado :Haines v. Feamley (1914), 56 Colo. 243, 138 Pac. 541; 
Larimer Co. v. Larimer Co. (1914), Colo. App., 143 Pac. 270; Snyder v. 
Colorado etc. Co. (C. C. A. Colo.) 181 Fed. 62. 

Idaho: Young v. Regan (1911), 20 Idaho, 275; 118 Pac. 499; King 
V. Cliamberlain (1911). 20 Idaho, 504, 118 Pac 1099; Marshall v. Niagara 
Co. (1912), 22 Idaho, 144, 125 Pac 208; Tobey v. Bridgeford (1912), 22 
Idaho, 566, 127 Pac. 17a 

Kansas: Rolers v. City of Hutchinson (1910), 83 Kan. 618, 112 
Pac 129. 

Nevada: Bidleman v. Short (Nev. 1915), 150 Pac 834. 

Oregon: Pringle Falls Co. v. Patterson (1913), 65 Ore, 474, 132 Pac 
527; Talbott v. Joseph (Ore 1916), 155 Pac 184. 

South Dakota: Metcalf v. Nelson (1895), 8 S. Dak. 87, 65 N. W. 911; 
Q^ZtT V. McMahon (1913), 31 S. Dak. 95. 139 N. W. 958. 

Washington: White Bros. Co. v. Watson (1911), 64 Wash. 666, 117 
Pac 497; State v. Superior Court (1912), 70 Wash. 442, 126 Pac. 945. 

Wyoming: Bucknum v. Johnson (Wyo. 1912), 127 Pac. 904; Laughlin 
V. Bd. of Control (Wyo. 1912), 128 Pac 517; Groo v. Sights (Wyo. 1913), 
134 Pac 270. 

""Counsel argues with much force and persuasiveness that, inasmuch 
as the respondents will in no wise be injured by a change from ditch and 
flume to pipe line, the right to make the change should be accorded to the 



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2o6 CALIFORNIA LAW REVIEW 

parties whose rights are infringed. Persons not in privity with 
an infringed owner have no standing to complain. Change of 
point of diversion, or manner, place or purpose of use cannot be 
contested by one who is not himself affected, on the plaint that 
others on the stream, however many, are going to suffer. That 
is no argument. Between strangers to the landowner, ditches on 
his land may be changed at will. So long as he is silent, no 
rival appropriator can avoid the change as being a violation of the 
right of the landowner. So, also, any one appropriator may 
change as against a rival appropriator not injured thereby, how- 
ever much the change may or may not infringe upon still other 
appropriators or riparian owners. The party actually infringed 
may have the paramount right, but so long as he is silent the first 
appropriator has a possessory right in the changed use, which is 
good against the world except the paramount right, and until the 
paramount right is asserted.^* 

Another exception is that injunction against changes is given 
to preserve existing rights in natural streams. Flows of artificial 
origin are not included. The creator of the artificial flow may 
make changes at its source without hindrance from others to 
whom it has come, for such others have no right of continuance 
of the source, against him. In natural flows the source is by 
natural creation, but in waste from a ditch, or the rtm-off of 
water pumped from a mine, or the like, the source is manufac- 
tured by the ditch or pump owner. Rights against him in the 
source would be rights to have his "water factory" kept going. 



appellant; that the taking of the additional right of way and conducting 
the water in a pipe line invades no substantial right of the respondents. But 
even if it were shown that the change would be an actual benefit to the 
respondents, we would have no power to compel them to accept the benefit. 
The question is one of property rights, not of benefits or injuries. Many 
authorities so hold, and we have been cited to none to the contrary. 'No 
one has a right to compel another to have his property improved in a 
particular manner. It is as illegal to force him to receive a benefit as to 
submit to an injury.'" White Bros. Co. v. Watson (1911), 64 Wash. 
666, 117 Pac. 497. Accord, Allen v. San Jose Co. (1891), 92 Cal. 138, 
28 Pac. 215. 

2* See Wiel, Water Rights (3d cd.). Chapter 11 (Reprint); and §§ 
498, 499, 500, 625, 626, 627, 628; and see 1 California Law Review, 11; 
2 id. 25. 

''As to the question of a change in the purpose of the diversion to a 
different beneficial use from that of the original appropriation, appellant, not 
having an interest in the water by virtue of an appropriation, is in no 
position to complain." Campbell v. C^oldfield W. Co. (1913), 36 Nev. 
458, 136 Pac. 976. 



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INJUNCTION WITHOUT pAMAGE ao; 

They can be had only by contract from him or the like; not by 
simply receiving his waste. This statement may be somewhat too 
broad to be exact, but it is near enough for present purposes. Any 
change by him of his ditch or pump, changing or stopping the 
source of the manufactured flow, is no cause of action. Dam- 
age or no damage does not enter here. There is no right invaded 
by the change in the first place; certainly not where the change is 
made in good faith for some purpose of the maker, without malice 
or mere ill-will to the persons deprived thereby.** This exception 
applies, however, only to changes at the source. It also only 
applies to permit changes by the producer of the artificial flow. 
The law is that among all the rest of the world except the 
producer, the flow follows the usual law of water-courses, and 
it is immaterial between them how that flow came to be.*** 
Strangers to the producer are not concerned with his rights when 
they are not privy to him, and he is not setting them up himself. 

The rule that change can be made "if no injury to others" 
was begun on common law authority. In the original precedent, 
cited at the beginning, for change of point of diversion, the court 
quoted common law decisions and texts and drew its conclusion 
from them.** But when it comes to defining "injury" there is in 
all parts of the law this twilight zone between "damage" and 
"injury" that causes different views.*^ An illustration elsewhere is 
where riparian owners seek injunctions against change of condi- 
tions by nonriparian owners. Some rulings say such change 
will not be stopped unless it is shown to be "injurious;" others 
(and the weight of authority) hold such change to be an injury 
"per se ;" and the debate continues unsettled still.** In the common 
law of easements the question has arisen how far the dominant 
owner can change the use of the easement. Here the ruling against 
the change seems to be accepted with less dispute.** 

It seems worth recalling that in 1856 and i860, when the 



"Sec Wiel, Water Rights. (3d. ed.), §§ 53-62; 29 Harvard Law 
Review 137. 

**• See the paper of the present writer in 29 Harvard Law Review, 137. 

"Kidd v. Laird (1860), 15 Cal. 161. 181. 

" See 1 C. J. 964; Wiel. Water Rights, (3d ed.), § 642. 

"Wiel. Water Rights, (3d ed.), Ch. 35; 2 California Law Review, 340. 

»• 14 Cyc 1206, 1211. "Plaintiff established a prescriptive right to the 
use of the water for stock purposes, and it is so found, but there is 
no evidence and no finding that he acquired any such right to use the 
water for household or domestic purposes or for irrigation." (Held fatal). 



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2o8 CALIFORNIA LAW REVIEW 



X, 



original rulings permitting changes were made, and during the 
period up to the end of the eighties when they were spread 
through the western water law, the locality was a wide expanse 
of public domain, where changes were mainly upon public land 
le "injury," if any, was predominantly to the United States, who 
taised no objection. Since then setti^ment has occupied much of 
^e region around water supplies. Land and rights in water have 
I T)ecome private property. The rule that there must be no injury 
to them has become more prominent than the rule of change. 
Those who may be injured have increased and multiplied and 
now assert their rights, and along with this has come a stricter 
view of what constitutes an "injury."'** 

Whatever the reason, a glittering generality that was very easy 
of statement and seemed simplicity itself, seems to be turning 
against itself in its application today. 

Samuel C. Wiel 
San Francisco, California. 



Gumscy v. Antelope etc Co. (1907), 6 Cal. App. 393. A prescriptive right 
for watering stock cannot be changed to irrigation, Duckworth v. Watson- 
ville Co. (1907), 150 Cal. 520, 89 Pac 338. A right of way to carry water 
to certain lands cannot be changed to carry it to other lands, Logan v. 
Guichard (1911), 159 Cal. 592, 114 Pac 989. Easement granted for 
"supply pipes" of a water system cannot be changed to use as distributing 
pipes; that is, pipes for conveying water from one reservoir to another 
cannot be used for conveying water from the reservoir to consumers, 
Gray v. Cambridge (1905), 189 Mass. 414, 76 N. E. 195. One cannot sub- 
stitute an iron pipe in place of a flume or trough, against the opposition 
of the owner of tiie land upon which it lies, Lewis v. Meredith (1913), 1 
Ch. 571, 580. 

»oSee in Re North Powder River (1914), 75 Ore. 83, 144 Pac 486. 



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Inalienable Rights of Property: A Study of 

Contradl Obligations and Other 

Vested Rights 

VI. Rights of Individuals Under Particular Transactions. 

Time as of which contract rights vest. — ^The constitutional 
and statutory law in force at the time a contract is made 
enters into and becomes a part of it; and the rights which 
become vested by virtue of a contract are those created by 
the act of the parties in view of such law.* Where a public 
contract for street work, to be completed in a specified time, 
and to be paid for by local assessment to be collected after the 
work was done, was entered into by a city in the fall of 1879, 
a provision of the state constitution,^ adopted in 1879 to take 
effect in January of the following year, requiring that where 
public work in a city is to be paid for by local assessment, the 
assessment be collected and paid into the city treasury before 
any contract for doing the work is let, does not apply; and, 
such contract being valid under the law in force when it was 
made, was not invalidated by the constitutional provision, either 
as a whole, or merely as to work not done thereunder when 
the new constitution took effect: the fact that after January i, 
1880, the time to complete the work was extended by the city 
pursuant to authority given by such street law, does not affect 
the result, the granting of the extension not being a novation 

^Robinson v. Magce (1858), 9 Cal. 81; Tuolumne Redemption G>. v. 
Sedgwick (1860), 15 Cal. 515; Ede v. Knight (1892), 93 C:al. 159, 28 Pac. 
860; Welsh v. Cross (1905), 146 Cal. 621, 81 Pac. 229, 106 Am. St. Rep. 63. 

In case of carriage of persons or property by a railroad, the law, con- 
stitutional and statutory, regulating such matter, subsisting at the time and 
?lace of the making of the contract and where such contract is to be per- 
ormed, enters into and forms a part of the contract, the same as though 
set forth at length in the contract. James v. Oakland Traction Co. (1909), 
10 Cal. App. 785, 103 Pac. 1082; Southern Pacific Co. v. Superior Court 
(1915), 27 Cal. App. 240, 150 Pac. 397, opinion being reserved by supreme 
court on denying rehearing, 27 Cal. App. 256, (carriage of freight, the long 
and short haul clause of the state constitution being involved). 

«Art 11, § 9. 



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210 CALIFORNIA LAW REVIEW 

or new contract."* Where at the time a municipality contracted 
an indebtedness to an individual, its power to contract the same 
was limited, there is no violation of the obligation of a contract 
in restricting the rights and remedies of the mdividual on such 
contract to those to which he was entitled under the limitations 
of the law which prevailed when he made the contract.* Where 
in 1872, when a note and mortgage were executed and the 
mortgagor died, the Probate Act,** provided: 

"No holder of any claim against any estate shall maintain 

any action thereon, unless the claim shall have been first 

presented to the executor or administrator," 

and section 1500 of the Code of Civil Procedure, as enacted in 

1872 to take effect in 1873, embodied the above section of the 

Probate Act with the proviso that, 

"An action may be brought by any holder of a mortgage 
or lien to enforce the same against the property of the 
estate subject thereto, where all recourse against any other 
property of the estate is expressly waived in the complaint," 

and thereafter the deceased mortgagor's will was probated, and 
notice to his creditors published, and subsequently this proviso 
was repealed, and later the note and mortgage became due, after 
which the time to present a claim thereon expired without the 
presentation of any, and with the exception expressed in section 
1500 as enacted in 1872 the law at all times had been that a 
claim not presented was "forever barred;" it was held that the 
mortgagee contracted with reference to the law in force 
at the time its note and mortgage were executed, and never 
acquired any vested right to foreclose its mortgage without first 
presenting a claim, and the repeal of the proviso by the amend- 
ment did not impair the obligation of its contract.'* 

Indefeasibility of contract rights not dependent on form of 
action, — The principle that rights created by a contract are vested 



««Per McKinstry, J., concurring in judgment in Hibemia Savings & 
Loan Soc. v. Jordan (1880), 2 Cal. Unrep. Cas. 79, 5 Pac Coast L. J. 381, 
(reversed on rehearing) ; Same v. Hayes (1880), 56 Cal. 297, 7 Cal. Unrep. 
Cas. 398, 6 Pac. Coast L. J. 686, on ground that the amendment of 1874 
did not applv to an estate wherein notice to creditors had been published 
before it took effect). 

•Oakland Paving Co. v. Barstow (1889), 79 Cal. 45, 21 Pac. 544; Ede 
v. (>)gswell (1889), 79 Cal. 278, 21 Pac. 767; Ede v. Knight, supra, n. 2. 

* Smith v. Broderick (1895), 107 Cal. 644, 40 Pac. 1033, 48 Am. St. 
Rep. 167. 

5 Cal. Stats. 1851, p. 448. 



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INALIENABLE RIGHTS OF PROPERTY 211 

and cannot be impaired by a subsequent change in the law which 
entered into and became a part of the contract, is applicable in 
actions of tort for violation of the law so entering into the con- 
tract, as well as in actions of contract on the contract.* 

Pensions and benefits. — By statute a fund was provided for 
the insurance of the San Francisco police, the fund consisting 
of a monthly sum paid by each police officer, and the accumula- 
tions thereof. This act was impliedly superseded by a later act which 
contained provisions inconsistent with the first, and this second 
act was superseded by the freeholders' charter of 1899. Until 
the happening of a contingency upon which, under that of the 
foregoing enactments in force at the time of its happening, a 
benefit was payable out of the fund created by them, the right 
of the beneficiary thereto was a mere expectancy and not a 
vested right.^ Thus the right to a benefit was to be determined 
by the law in force at the time of the happening of the con- 
tingency, and was subject to be lost by a change in the law® or 
by the discharge of the police officer* before the happening 
thereof. But upon its happening, the right to the benefit be- 
came vested and was not thereafter subject to be lost by any 
change in the law.^® 

Measure of damages for tort — It cannot be held that a change in 
an arbitrary and statutory standard of measurement of damages in 
cases of tort, when applied to a person who had suffered a wrong 
before the change, impairs the obligation of a contract or deprives 
him of any vested right, even though by the change the amount of 
damages recoverable by him for th^ wrong was reduced.^^ Thus 
where at the time of the wrongful conversion of certain per- 
sonal property section 3336 of the Civil Code provided that the 
detriment caused by the wrongful conversion of personal prop- 
erty "is presumed to be .... the value of the property at the 
time of the conversion, with the interest from that time, or, 



* Tames v. Oakland Traction G>., supra, n. 1. 

^Pennic v. Rcis (1889), 80 Gal. 266, 22 Pac 176^ afl5rmcd (1889), 132 
U. S. 464, 33 L. Ed. 426^ 10 Sup. Ct. Rep. 149. 

•Pennic v. Rcis, supra, n. 7; Cohm v. Henderson (1912), 19 Cal. App. 
89, 124 Pac. 1037. 

•Qarke v. Rcis (1891), 87 Cal. 543, 25 Pac 759. 

^<^Kavanaugh v. Board of Police Pension Fund Commissioners (1901), 
134 Cal. 50, 66 Pac 36. 

"Tullcy V. Tranor.(1878), 53 Cal. 274, 2 Pac Coast L. J. 311 



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212 CALIFORNIA LAW REVIEW 

where the action has been prosecuted with reasonable diligence, 
the highest market value of the property at any time between 
the conversion and the verdict, without interest, at the option 
of the injured party," together with "a fair compensation for 
the time and money properly expended in pursuit of the prop- 
erty," and after an action for damages for such conversion had 
with reasonable diligence been commenced and before the trial 
thereof this section was amended by striking out the alternative 
permitting recovery in certain cases of "the highest market 
value of the property at any time between the conversion and 
the verdict;" the injured party could not in such action recover 
such highest market value, but was restricted to a recovery of 
the value "at the time of the conversion, with the interest from 
that time."" 

Unenforced penalty, — "No person has a vested right in an 
unenforced penalty.""* Thus where the statute provided that in 
the event that the directors of a corporation failed to make the 
necessary reports they should be liable to the stockholders, jointly 
and severally, to the extent of one thousand dollars, and a stock- 
holder recovered judgment, but pending the appeal the statute 
was amended to read that the stockholder could only recover 
actual damages, it was held that this amendment prevented any 
further prosecution of the litigation.^* 

VII. Adjective and Remedial Rights. 

I. GENERAL PRINCIPLES. 

Adjective and remedial rights are placed by the constitutional 
guaranties beyond the reach of alteration by legislative act only 
so far as necessary for the protection of vested substantive rights. 
A change in adjective and remedial rights may always be made, 
provided that after the change a remedy remains which, in com- 
parison with that existing before the change, is reasonably efficient. 
Adjective and remedial rights may not, however, be entirely 
denied, nor changed so as to defeat or impair a vested substantive 
right or render it scarcely worth pursuing.^ 



i^Tulley v. Tranor, supra, n. 11. 

18 Anderson v. Byrnes (1898), 122 Cal. 272, 54 Pac. 821. 
1* Anderson v. Byrnes, supra, n. 13. 

1 Smith V. Morse (1852), 2 Cal. 524; People v. Hays (1854), 4 Cal. 
127, compare, however, remarks of Heydenfeldt, J., dissenting, p. 156; 



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INALIENABLE RIGHTS OF PROPERTY 213 

On the other hand, where a debt or duty is recognized by 
law as legally binding, an adequate remedy, though never there- 
tofore existing, may be given for the enforcement.^ 

In the application of these principles, it is often a difficult 
question whether a particular right is substantive in its nature, 
or adjective or remedial; and whether, if adjective or remedial 
in its nature, a change therein, applied to existing subject-matters, 
impairs vested substantive rights. In the further progress of 
this discussion, it will therefore be desirable to consider: 

First — Whether particular statutory changes affect substantive, 
or only adjective or remedial, rights; 

Second — ^Whether particular changes in adjective or remedial 
rights impair vested substantive rights. 

In what follows, the material under these sub-heads has not 
in all cases been rigidly classified as between them, for where 
in regard to the same topic both questions have been treated 
by the courts, as, for instance, in case of redemption law, and 
statutes of limitation, it has seemed best, owing to the intimate 
connection between the materials under the two sub-heads, to 
consider all the points that have arisen under the first. 

And finally, under separate sub-heads, will be considered cer- 
tain instances wherein the courts have considered whether or 
not particular remedial rights are essential to the protection of 
substantive rights, and one instance wherein the court, in its 
zeal to declare a law unconstitutional, held that to confer a 
certain remedial right in specified cases, subverted inalienable 
rights of property. 



Billings V. Hall (1857), 7 Cal. 1; Scarborough v. Dugan (1858), 10 Cal. 
305; Tull^ V. Tranor, supra, n. 11; People v. Brooks (1860), 16 Cal. 11; 
Hibemia Savings & Loan Soc. v. Hayes, supra, n. 5; Kerddioff-Cuzner 
Mill & Lumber Co. v. Olmstead (1890). 85 Cal. 80, 24 Pac. 648; Los 
Angeles v. Teed (1896), 112 Cal. 319. 44 Pac. 580; Teralta Land & Water 
Co. v. Shaffer (1897). 116 Cal. 518, 48 Pac. 613, 58 Am. St. Rep. 194; 
Welsh v. Cross (1905), 146 Cal. 621, 81 Pac 229, 106 Am. St. Rep. 63; 
Boggs v. Ganeard (1906). 148 Cal. 711, 84 Pac. 195; James v. Oakland 
Traction Co., supra n. 6; Title Ins. & Trust Co. v. Lusk (1911), 15 Cal. 
App. 358, 115 Pac. 53; Buck v. Canty (1912), 162 Cal. 226, 121 Pac. 924; 
Southern Pacific Co. v. Superior Court (1915), 27 Cal. App. 240. 150 Pac 
397, (opinion on all points involved reserved by supreme court, 27 Cal. 
App. 256). 

« People v. Seymour (1860). 16 Cal. 332; Galland v. Lewis (1864), 26 
Cal. 46; Aikins v. Kingsbury (1915), 170 Cal. 674, 151 Pac 145. 



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214 CALIFORNIA LAW REVIEW 

2. PARTICULAR STATUTORY CHANGES AS AFFECrTING SUBSTANTIVE 
OR ONLY REMEDIAL RIGHTS. 

It is sometimes a difficult matter to distinguish between the 
right and the remedy.' 

Changing mode of probate sale. — In an early case where it 
was held that a special law authorizing the administrator of a 
decedent's estate to sell land of such estate on grounds additional 
to those permitted at the time of the decedent's death invaded 
vested rights of the distributees of the estate, the court, however, 
said that a special law which authorized the administrator to sell 
in a mode not provided in the general law, as by private sale, 
would be remedial and unobjectionable.* 

Validating informal acts, — ^A statute validating a contract or 
conveyance made in good faith, but not in the mode prescribed 
by the then existing law, and void under such law, cannot be 
said to divest a vested right: there is no vested right to take 
advantage of a defect in form.' Thus where a statute of 1863 
authorized married women to make and revoke powers of at- 
torney in the manner and to the extent provided by tl^e act,* and 
theretofore a married woman was incompetent to execute a power 
of attorney, but section 4 of the act provided: 

"All powers of attorney heretofore made and executed by 
any married woman, with her husband, and acknowledged 
and certified in the manner provided in section i of this act, 
and all conveyances heretofore and hereafter executed under 
and by virtue of such powers of attorney, and acknowledged 
and certified in the manner provided in section 2 of this act, 
shall be valid and binding; provided, that no rights already 
vested in third persons shall be affected by anything in this 
section contained ;" 
section 4 is not open to objection as impairing the obligation of 
contracts or as divesting vested rights.' 

However, "it is a well settled proposition that where some 



•Smith V. Morse (1852), 2 Cal. 524; Aikins v. Kingsbury, supra, n. 2. 

*Brenham v. Story (1870), 39 Cal. 179. 

»Dent2cl V. Waldic (1866). 30 Cal. 138. 

«Cal. Stats. 1863, p. 165. 

'Dentzel v. Waldie, supra, n. 5, (a married woman cannot, after the 
passage of the act, maintain an action to set aside a conveyance of her 
separate land, made before the passage of the act pursuant to a power of 
attorney given by her) ; Dow v. (Jould & Curry Silver Mining Co. (1867), 
31 Cal. (S9, (the act validated an assignment of a certificate of corporate 
stock, stanaing in the name of a married woman, made pursuant to a power 
of attorney given by her before the passage of the act). 



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INALIENABLE RIGHTS OF PROPERTY 215 

essential ceremony in the matter of executing a will has been 
neglected, so that the will is not lawfully executed, and such 
essential requisite has been dispensed with by a law enacted after 
the death of the person attempting to make such will, the law 
cannot be applied thereto and the person must be held to have 
died intestate."* The vested rights of some third persons in the 
decedent's estate would be injuriously afifected. 

Removing speed limit of street cars after accident from exces- 
sive speed. — Where a proximate cause of an injury to a street 
car passenger was a violation of a state law regulating the speed 
of cars, it was held that the law was a condition entering into 
the contract of the carrier with such passenger, a rule of prop- 
erty and not a mere matter of procedure or rule of evidence, 
and continued to apply in an action by such passenger for dam- 
ages from such injuries, notwithstanding its later repeal.* 

Authorizing interception of contract price for street work. — 
Where the special charter of San Jose city of 1874 provided for 
the acceptance or rejection of street work done for the city 
imder contract therefor after certain inspection, and if accepted 
required a warrant on the general fund to be drawn "in favor 
of the contractor for the amount due upon such contract;" and 
the charter was amended so as to provide that upon the accept- 
ance of the work notice thereof must be given by publication, 
that at any time before the warrant is drawn any person fur- 
nishing labor or materials in the performance of the work may 
file with the city a verified claim for the amount due him, that 
if not disputed by the contractor any such claims shall be paid 
from the moneys owing the contractor, pro rata if necessary, 
and charged to the contractor, and that if any such claim is dis- 
puted the amount claimed shall be retained by the city treasurer 
out of the contract price until such claim is adjudicated in a 
court of competent jurisdiction, it was held that the amenda- 
tory act could not be applied to a contract for street work entered 
into by the .city before the amendatory act took effect, even though 
the contract was finished afterwards, although the verified qlaims 
filed with the city were not disputed by the contractor and were 
paid by the city; notwithstanding such payment the contractor 

«In re Patterson's Estate (1909). 155 Cat. 626. 102 Pac 941, 132 Am. 
St Rep. 116, 26 L. R. A. (N. S.) 654, 18 Ann. Cas. 625. 
* James v. Oakland Traction Co., supra, n. 1. 



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2i6 CALIFORNIA LAW REVIEW 

was entitled to receive from the city the contract price of his 
contract. ^° 

Making fraudulent as against creditors certain transfers. — 
Where at the time an insolvent debtor conveyed certain real prop- 
erty without consideration section 3442 of the Civil Code pro- 
vided that the fraudulent intent in such a transfer was a question 
of fact, which could not be found merely from the fact of ab- 
sence of consideration, and later the proviso was added that 
"any transfer or incumbrance of property, made or given volun- 
tarily or without a valuable consideration, by a party while in- 
solvent, or in contemplation of insolvency, shall be fraudulent 
and void as to existing creditors," it was held that the proviso 
could not be applied to the conveyance in question. Section 3442 
is something more than a rule of evidence ; it is a rule of property 
as well, for under the section as it stood before the proviso was 
added, insolvency was only a circumstance tending to show 
fraudulent intent, and there might be other controlling facts 
which would relieve the act from any fraudulent intent and 
validate it, but under the amendment, fraudulent intent is pre- 
sumed from the act as matter of law, and no conceivable fact 
can remove such presumption.** 

Changes relating to ^public obligations. — An important group 
of cases have to do with statutory changes bearing upon obliga- 
tions already incurred by public authorities. 

In the absence of an express contract to the contrary, the 
state or a public body thereof may make such appropriation of 
its revenues as it may from time to time elect, even to the extent 
of forbidding the payment therefrom of an existing obligation.*^ 
Its creditors have nothing to rely upon except its good faith; it 
cannot be sued or made amenable to judicial process except with 



"McGee v. San Jose (1885). 68 Gal. 91, 8 Pac 641, the court saying: 
"The legislature could not, by an act passed after this contract was made, 
change its terms or authorize a performance different from that pre- 
scribed in the contract." (The real effect of the amendatory act in ques- 
tion appears, however, merely to have been to give certain of the con- 
tractor's creditors a new remedy, by intercepting the contract price of his 
contract.) 

11 Cook v. Cockins (1897), 117 C:al. 140, 48 Pac. 1025. 

12 McDonald v. Griswold (1854), 4 Gal. 352 (353, 354); Hunsaker v. 
Borden (1855), 5 Gal. 288; San Francisco v. Beideman (1861), 17 Cal. 443; 
Sharp V. Gontra Gosta Gounty (1867), 34 Gal. 284; Rose v. Estudillo 
(1870), 39 Gal. 270. 



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INALIENABLE RIGHTS OF PROPERTY 217 

its consent." In a case in 1855 it was further said that the right 
to sue a county may be withdrawn at will at any time.^* On the 
other hand, it was held in 1891 that where at the time Sacramento 
city contracted a bonded indebtedness its charter provided that 
the city might "sue and be sued in all courts and in all actions 
whatsoever," the legislature could not thereafter by any act it 
might pass take away from any holder of any such bonds his 
right to sue the city thereon.^** 

The holder of an audited debt of a public body cannot, how- 
ever, be required to submit to a new auditing thereof," nor to 
accept other obligations of such body in payment thereof.^^ The 
legislature cannot declare duly audited claims against a county 
invalid, nor authorize an auditing board to do so, nor impose 
additional conditions upon creditors." 

Moreover, if the revenue has been provided by law, and the 
money produced by it for the purpose of paying the debts the 
state has contracted to pay, the creditor, who by law is entitled 
to the money, has an interest in the fund of which the legislature 
cannot deprive him.^* 

And where by the express provision of the law by acceptance 
of which a contract with the state or public authority is made, 
specific provision is made for the auditing and payment of the 
demand of the person who entered into such contract, or for 
raising revenue to pay the demands against the state or public 
body arising under such contract, or appropriating money to its 
payment, such provisions constitute part of the contract obliga- 
tion, and the rights of such contractee cannot be destroyed or 
impaired by any subsequent legislation.*** 

San Francisco funding act of 1851. — In concluding this 
discussion of public obligations, the series of cases dealing with 



^•Hunsakcr v. Borden, supra, n. 12; Sharp v. Contra Costa County, 
supra, n. 12. 

i*Hunsaker v. Borden, supra, n. 12. 

"Bates V. Gregory (1891), 89 Cal. 387, 26 Pac. 891. 

i« Robinson v. Magee (1858), 9 Cal. 81; Rose v. Estudillo (1870), 
supra, n. 12. 

»' McDonald v. Griswold, supra, n. 12, where the court said: "We 
do not believe that the legislature could compel the holders of county 
scrip to fund the same, unless by their consent." 

!• Rose v. Estudillo, supra, n. 12. 

i»Rosc v. Estudillo, supra, n. 12; Laforge v. Magee (1856), 6 Cal. 650. 

w People v. Brooks (1860), 16 Cal. 11; English v. Board of Super- 
visors (1861), 19 Cal. 172. 



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2i8 CALIFORNIA LAW REVIEW 

the San Francisco city funding act of 1851, will be considered 
together, although some of them bear more or less fully on points 
already made. 

This act authorized the holders of the floating indebtedness 
of San Francisco city to exchange their demands against the city 
for certificates of indebtedness bearing ten per cent interest, termed 
city stock, required the board of "commissioners of the funded 
debt," created by the act, to certify to the city assessors annually 
before the general assessment-list was made out, the amount which 
must be raised "for the payment of the interest of the debt so 
funded for the current year," and the assessors to add to the 
annual budget "the amount so certified, .... and .... the fur- 
ther sum of $50,000 in each and every year, for the purpose of a 
sinking fund for the redemption of such stock," provided that "the 
first moneys collected upon the whole of such general assessment- 
list .... shall be paid .... by the city treasurer into the hands 
of said commissioners as fast as collected; and no payment shall, 
either directly or indirectly, be made out of the moneys assessed 
or collected upon the said assessment-list, for any other purpose, 
until the amount authorized .... shall have been actually paid 
over to said commissioners," required said commissioners with said 
moneys to pay the interest on the city stock and use the residue 
for said sinking fund purposes as prescribed by the act, made 
wilful violation of the act by any public officer a misdemeanor, 
and gave the district court power to enforce the act. Thereafter, 
pursuant to such act, holders of city indebtedness exchanged their 
demands for city stock. Shortly after the city and county of San 
Francisco were consolidated by The Consolidation Act important 
questions as to the effect of the new instrument of government 
upon the contract of the holders of city stock arose. This lead 
the Supreme Court to say in one of the earlier cases where such 
questions were involved:*^ 

"Nothing which adds any new risks, delays, or embar- 
rassments to the execution of this contract as it is written, 
can be grafted on its original terms. . . . The substantial 
right is that this sum shall certainly be raised, and that the 
first moneys collected upon the whole general assessment 
list are to be patd to the treasurer, and by the treasurer into 
the hands of the commissioners as soon as collected. . . . 

"People v. Bond (1858), 10 Gal. 563. 



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INALIENABLE RIGHTS OF PROPERTY 219 

It is just as incompetent for the l^islature to subject this 
money, lying in the treasury in trust for the conmiissioners, 
and immediately payable to them, to the supervision, discre- 
tion, or control of the board of supervisors, as it would be 
incompetent to add any other term to the contract. . . . The 
debt is due and liquidated. ... It requires no auditing. The 
propriety of the payment is not to be passed upon. The 
simple ministerial duty of counting and handing over the 
money to the treasurer, who alone is trusted with the duty, 
remains; and he must discharge that legal duty, thus cast 
upon him, and not wait until it pleases the supervisors to 
meet, and meeting, to take up the question, and, taking it up, 
allow it to be paid or not at their discretion/' 

The following year, in an opinion by the same justice, the court 
further declared :** 

"The act of 185 1 is a law as well as a contract. . . . \v^hile 
in its substantive provisions it partakes of the nature of a 
contract and has the sanctity and inviolability of one, yet it 
is of the very nature of the law that those of its provisions 
which are merely legislative modes to give effect to the sub- 
stantial purposes of the act may need revision and alteration. 
The details may, as in other laws, be altered where the aUer- 
ation does not affect the security of the bondholders. New 
provisions may be added for their security, and other pro- 
visions may. be added for the protection or security of the 
city." 

Accordingly the court held that the Consolidation Act cannot be 
given the effect of withdrawing from the possession and control 
of the commissioners any part of the annual proceeds of the 
tax required by the act of 1851." But where the Consolidation 
Act provided for the election of but one assessor, and not for 
the three provided by the city charter of 1851 and placed the 
sole power to levy city and county taxes in the hands of the 
board of supervisors, it was not the right nor the duty of the 
assessor so provided to add to the amount of taxes required by 
the supervisors to be collected the amount necessary for the pur- 
poses of the commissioners, but the first revenue derived from 
such taxes must be paid by the treasurer to the commissioners, 
as in the act of 1851 required.** And where the act of 1851 
provided for the purchase and redemption of the city stock with 



"Thornton v. Hooper (1859), 14 Gal. 9. 
"People v. Woods (1857), 7 Cal. 579. 
*^ People v. Bond, supra, n. 21. 



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220 CALIFORNIA LAW REVIEW 

such moneys as came into the hands of the commissioners be- 
yond that required for interest and expenses, "provided, that 
no stock shall be so purchased at a price higher than par," but 
stock could not be purchased at that price and a surplus ac- 
cumulated in the commissioners' hands, there was no constitu- 
tional objection to a statute^** amending the proviso to read: "pro- 
vided, that no proposal shall be accepted at any higher premium 
than five per cent above par;" no better method of providing 
for the security of the surplus could be conceived.** Again, where 
the act of 1851 vested in the commissioners certain lands,*^ and 
gave them "the right, at such time and place as in their discretion 
the interest of the city may require, to expose at public sale or 
to lease the property," and required them to "apply the proceeds 
of such sale or lease to the liquidation of the floating debt of 
said city," it would not bei within the power of the legislature 
to deprive the holders of the city stock of this additional security." 
There is, however, no objection to a statute providing that where 
any person had been in actual possession of any of said land, 
personally or by his tenants or predecessors in interest, from 
January i, 1855, and was a purchaser in good faith for value, 
and claimed title thereto under a statute ratifying the grants made 
by the Van Ness ordinance of June 20, 1855, the conunissioners 
might, if the land had not bten already disposed of by them, 
convey it to him on payment of costs and a certain further sum: 
a puSlic sale, as provided in the act of 1851, of land subject to 
such an adverse claim, would seldom produce more than a nominal 
sum.** ^ 

Redemption laws, — A second important group of cases deals 
with changes in redemption laws, that is, laws authorizing the 
redemption by owners and other specified persons of real prop- 
erty from tax sales, execution sales, or judicial foreclosure sales, 
and prescribing the terms on which such redemptions are allow- 
able, and the procedure by which they are effected. The right 
of redemption from sales on judicial process was first introduced 
into this state by the Practice Act of 1851.'®® iJefore that time 



2«Cal. Stats. 1858, p. 178. 

2« Thornton v. Hooper, supra, n. 22. 

27 Board of Education v. Fowler (1861), 19 Cal. 11. 

28 Supra, n. 23. 

"Babcock v. Middleton (1862). 20 Cal. 643. 
«o Cal. Stats. 1851, p. 51. 



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INALIENABLE RIGHTS OF PROPERTY 221 

all such sales had been absolute, without right of redemption. 
Since that time a right of redemption, though undergoing many 
changes, has always been recognized. 

It is apparent that the adoption and alteration of such laws 
create different problems of vested rights, according as they are 
viewed from the standpoint of creditor, debtor, purchaser at the 
sale, or redemptioner. The first case in this group'^ involved a 
sale under a money judgment rendered after the redemption law 
took effect, on a contract debt which had become due before 
then. Only the rights of the purchaser were in question. Justice 
Wells in the leading opinion argued that the redemption law could 
not be applied to the sale in question, because it would hinder the 
creditor in collecting his money, and thus impair to some extent 
the obligation of his contract, and that the purchaser must be 
presumed to have known that this was so. Chief Justice Murray 
concurred in the judgment on other grounds. Justice Heydenfeldt, 
dissenting, declared that it could not be assumed that the judg- 
ment debtor had only enough land to pay the debt in question 
when sold absolutely, that under the exacting conditions of re- 
demption prescribed, it could not be inferred that land would 
bring less when sold subject to redemption than when sold ab- 
solutely, that the redemption law left the creditor a substantial 
remedy, that the only contract in which the purchaser was in- 
terested was that which he made when he bought at the sale, that 
he must be presumed to have looked to the law as it existed at 
that time, and that certainly the application to the sale of the 
redemption law did not violate any vested right of his. 

The next case" involved the question whether the change 
made in the Practice Act by a statute of 1859" of the terms 
upon which a subsequent redemption could be made, applied to 
an attempted redemption by a redemptioner of certain land 
which had been sold, on foreclosure of a mortgage, to the judg- 
ment creditor, after the amendment took effect. The court held 
that redemption laws related solely to the remedy, that rights of 
redemption were given to prevent a sacrifice of the land at forced 
sale, not as a part of the contract between the parties but to pre- 



" People V. Hayes (1854), 4 Cal. 127. 

"Tuolumne Redemption Co, v. Sedgwick (1860), 15 Cal. 515. 

w Cal. Stats. 1859, p. 139. 



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222 CALIFORNIA LAW REVIEW 

vent an abuse of the remedy, that a sale either with or without 
a right of redemption is an adequate remedy, that the change 
did not affect the contract of mortgage, that the mortgagee had 
no vested right to have the land sold in any particular way, that 
the only contract the redemption law entered into or of which it 
became a part was that of the purchaser at the sale, and that it 
was the redemption law in force at the time he bought that be- 
came a part of his contract, and in the terms of which the pur- 
chaser secured vested rights. As said by two justices of the 
Supreme Court in the leading opinion: 

'The legislature has no right to alter the terms of a con- 
tract already in existence; it has a right to alter the remedy. 
The contract in this case was the engagement to pay money; 
the remedy was a forced sale of the property of the debtor; 
the mode of the sale was a matter of legislative discretion/' 

And on denying a rehearing the court said: 

"The whole aim of our opinion was to show that this matter 
of redemption was a new contract, not connected with the 
original contract, but created or authorized by statute as a 
part of the remedy." 

In the third case,** in 1869, ^^ court held on the authority of 
the latter case, and of the opinion of Justice Heydenfeldt in the 
former, that where a money judgment was rendered before, but 
land was sold thereunder after, the redemption law of 1851 took 
effect, the sale was subject to redemption, notwithstanding the 
judgment creditor was purchaser at the sale. 

The result, then, of these early decisions was: 

1. That redemption rights relate only to the remedy, and 
a sale either with or without a right of redemption affords 
an adequate remedy. 

2. That whether the first conclusion is right or not, it 
is certain that neither a purchaser nor a redemptioner can 
complain of the application to his situation of the law in 
force when the sale was made. 

In subsequent cases the right of purchasers and redemp- 
tioners, in case of alteration of a redemption law after a sale, 
came in for consideration. 

As to the purchaser, it was held in 1892 that where the time 
to redeem lands from a tax sale had once expired, the purchaser 

«* Moore v. Martin (1869), 38 Cal. 428. 



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INALIENABLE RIGHTS OF PROPERTY 223 

could not, by an amendatory law enlarging the time for redemp- 
tion, be deprived of his absolute right to a deed;*** in 1897, that 
an amendment to section 702 of the Code of Civil Procedure, 
reducing the premium to be added to the purchase price, in ascer- 
taining the amount necessary to effect a redemption, from two 
per cent per month to one per cent per month, did not and could 
not apply to a redemption from a sale made before' it took effect;'* 
and in 191 1, that the provision of a statute of 1906, that "any 
act or proceeding appointed, required or limited by or in pur- 
suance of law to be performed or taken on any day or within 
any time in the month of June, 1906, prior to the last day of said 
month, may be performed or taken on any day not later than 
the loth day of July, A. D. 1906, with the same effect as if it 
had been performed or taken on the day or within the time 
wherein such act or proceeding was so appointed, required or 
limited to be performed," cannot make effectual a redemption 
of land attempted July 9, 1906, from a sale made June 12, 1905, 
the law in force at the time of sale limiting the period of re- 
demption to one year ®^ The redemption law in effect at the 
time of the sale enters into and becomes a part of the contract 
of the purchaser at the sale. As to redemptioners, it was held 
in 1897, that the right given the owner to redeem is a vested 
right, pertaining to the contract of purchase, and in reason 
and justice no more open to attack than that of the purchaser.'® 
This conclusion, however, left out of account the provisions of 
section 327 of the Political Code, considered in the second divi- 
sion of this article, in connection with rights expressly made 
revocable. 

Subsequent cases have held that the redemption of land sold 
at a tax sale is governed by the law in force at the time of sale: 
it cannot be affected by subsequent legislation.'* 

»« Rollins V. Wright (1892), 93 Cal. 395. 

••Thresher v. Atchison (1897), 117 Cal. 73, 48 Pac 1020, 59 Am. St 
Rep. 159. 

•^Summers v. Hammcll (1911), 17 Cal. App. 493. 120 Pac. 63. 

••Tcralta Land & Water Co. v. Shaffer, supra, n. 1. In Collier v. 
ShafFcr (1902), 137 Cal. 319, 70 Pac. 177, however, the court held that the 
amendment prevailed in such a redemption, to tiie extent that it elimi- 
nated a danse of the original provision requiring the redemptioner to pay 
the County Auditor a fee of $2 for an estimate of the amount of redemp- 
tion money necessarv, on the ground that the legislature could relieve a 
party desiring to redeem from burdens in favor of the state. 

••Collier v. Shaffer, supra, n. 38; Johnson v. Taylor (1907), 150 Cal. 
201. 88 Pac 903, 119 Am. St Rep. 181, 10 L. R. A (N. S.) 818 



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224 CALIFORNIA LAW REVIEW 

Even as to purchasers, however, a subsequent statute requir- 
ing the purchaser of land at a tax sale to give the former owner 
or the occupant of the land, not more than thirty days before the 
expiration of the period of redemption, thirty days' written notice 
of such expiration or of the time when he will apply for a deed 
of the land, and extending the period of redemption until the 
notice is given and the deed applied for, affects the remedy only 
and is therefore applicable to a redemption from a tax sale 
made before its enactment.*® But a subsequent statute, abolish- 
ing the requirement of notice in case of the sale of property to 
the state for taxes, and making the period of redemption five 
years and until entry upon or sale of said land by the state, in 
lieu of one year and until the giving of such notice and the ap- 
plication for a deed, injuriously affects substantive rights of 
redemptioners, in that the period of redemption may end with- 
out notice to redemptioners, and, possibly, sooner than before, 
and therefore cannot apply to a redemption from a tax sale made 
before it took effect.*^ 

The decisions thus far considered are all consistent with one 
another; but beginning in 1899, imder the influence of a decision 
of the United States Supreme Court, rendered in 1896 on appeal 
from Kansas,*^ the State Supreme Court sharply limited, if it 
did not overrule, the old doctrine that a sale either with or 
without a right of redemption affords an adequate remedy. On 
the contrary, it held, in a series of cases where the amendment 
to section 702 of the Code of Civil Procedure, enlarging the 
period of redemption from six months to one year, was involved, 
that such amendment could not apply at all to a redemption 
from a sale made on the foreclosure of a mortgage made before 
the amendment took effect,*** nor to a redemption from an exe- 
cution sale on a judgment rendered before it took effect,*^ not- 
withstanding such sales were made thereafter. 

' *oOullahan v. Sweeney (1889), 79 Gal. 537, 21 Pac. 960, 12 Am. St 
Rep. 172. 

*^ Johnson v. Taylor, supra, n. 39. 

«Bamitz v. Beverly (1896), 163 U. S. 118, 41 L. Ed. 93, 16 Sup. Ct 
Rep. 1042. 

*2a Savings Bank of San Diego County v. Barrett (1899), 126 Cal. 413, 
58 Pac. 914; Haynes v. Treadway (1901), 133 Cal. 400, 65 Pac. 892, where 
the court further held that the fact that the land sold for more than suf- 
ficient to satisfy the mortgage debt and all its incidents, was immaterial; 
Tuohy v. Moore (1901), 133 Cal. 516, 65 Pac. 1107; Malone v. Roy (1901) 
134 Cal 344 66 Pac 313 

« Welsh V. Cross (1905), 146 Cal. 621, 81 Pac 229, 106 Am. St Rep. 63. 



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INALIENABLE RIGHTS OF PROPERTY 225 

It may be doubted, whether, in so deciding, the State Supreme 
Court correctly understood the import of the decision of the 
federal court in question. A Kansas statute was there involved 
which not only created a period of redemption of eighteen months' 
duration where theretofore there had been no right of redemp- 
tion at all, but besides gave the judgment debtor during that 
period the right to continue in possession, and the absolute title 
to the rents, issues and profits, except as needed for repairs, and 
provided that, in case of a redemption by him, the land should 
thereafter be exempt from liability for any impaid balance of 
the debt on which it was sold, or on any inferior lien the holder 
of which might have redeemed. In all these respects the Kansas 
statute went beyond anything ever contained in the California 
redemption law, which not only prescribes a shorter period of 
redemption, but, where a redemption is not effected, entitles the 
purchaser to receive from the tenant in possession, the rents of 
the property sold, or the value of the use and occupation thereof, 
and, where it is effected, makes no exemption. The United States 
Supreme Court, in holding the Kansas statute could not apply 
to a sale made on foreclosure of a mortgage executed before its 
passage, among other things, said: 

"It seems impossible to resist the conviction that such a 
change in the law is not merely the substitution of one remedy 
for another, but is a substantial impairment of the rights of 
the mortgagee as expressed in the contract." 
In a more recent decision, in 1904,** the United States 
Supreme Court pointed out that if a mortgagee claimed that 
subsequent legislation relating to rights of redemption impaired 
his contract and desired a sale without reference thereto, he 
should present such claim and desire to the court in which his 
mortgage was being foreclosed, and cause an appropriate pro- 
vision to that effect to be inserted in the judgment; but that in 
the absence of such a provision, a third party purchasing at the 
sale could not be heard to say that the redemption law in force 
when the mortgage was made applied to him, because the sub- 
sequent legislation might be void as to some one else. "The 
some one else might waive its illegality, or consent to its en- 
forcement, or the question might have no importance because 

♦* Hooker v. Burr (1904), 194 U. S. 415, 48 L. Ed. 1046, 24 Sup. Ct 
Rep. 706. 



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226 CALIFORNIA LAW REVIEW 

the property sold for enough to pay the debt, even though there 
was an abstract impairment of the obligation of his contract." 

Moreover, the State Supreme Court has not altogether fol- 
lowed the doctrine of its late decisions last referred to. The 
United States decision of 1904 was in affirmance of a decision 
of the California Supreme Court of 1902, wherein it was held 
that where a mortgage was executed before the amendment to 
section 702 of the Code of Civil Procedure reducing the premium 
to be paid on a redemption from two per cent per month to one 
per cent per month, and the property was sold to a third person 
after the amendment took effect, for more than enough to 
satisfy the mortgage debt in full, such purchaser cannot success- 
fully urge that a redemption made by payment only of the 
amotmt required by the amended law was insufficient.*" 

The last group of cases under this head deals with statutes 
of limitation and kindred acts, 

Statutes of limitation. — It is settled law that statutes of limita- 
tion relate to the remedy.*® So long as not unreasonable, they do 
not impair contract obligations or other vested rights.*^ 

Subject to the limitation that a reasonable time must be 
allowed for commencing an action or a proceeding after the 
passage of an act establishing or shortening a period of limita- 
tion, the constitutionality of statutes establishing or altering the 
period of limitation as to contracts and on vested rights then 
in force is beyond question.*® 

Similarly, the time for commencing an action or a proceed- 
ing may be extended.** A statute of 1850 defined the time for 
commencing civil actions, limited the time in cases of actions to 
recover real property, or of defenses based on title to real prop- 
erty, to five years, and said time ran from the passage of the act, 
April 22, 1850. By a statute of 1855 ^^ effect from April 
II, 1855, said sections were amended so that in case of a claim, 
derived from the Spanish or Mexican governments, to real prop- 
erty, the five years ran only from the time of the final confirma- 



« Hooker v. Burr, 70 Pac. 778, 99 Am. St Rep. 17. 

*« Billings V. Hall (1857), 7 Cal. 1. 

*TTuttIe V. Block (1894), 104 Cal. 443, 38 Pac. 109. 

«Doehla v. Phillips (1907), 151 Cal. 488, 91 Pac. 330. 

*®"A man has no vested right in the running of the statute of limita- 
tions." Swamp-Land District No. 307 v. Glide (1896), 112 Cal. 85, 44 
Pac. 451. 



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INALIENABLE RIGHTS OF PROPERTY 227 

tion of such title by the United States. It was held that the claim 
that the right to the limitations fixed by the act of 1850 had be- 
come vested in those in possession of real property, and that, 
as against them, the period of limitation could not be extended 
by the latter act, could not be sustained.*® Nevertheless, in a 
case where the owner of land caused the same to be conveyed 
to another by deed absolute, June 12, 1869, to secure certain 
advances then made by the grantee to him, both parties then 
being residents of and within New York state and neither of 
them then nor thereafter in actual possession of the land, and 
by the California laws of that time the right to redeem from 
a mortgage was barred when the demand secured by the mort- 
gage was barred by limitations, and by the New York laws such 
demand was so barred November 20, 1874, and in 1872 the 
California Code of Civil Procedure was enacted to take effect 
January i, 1873, section 346 providing: 

"An action to redeem a mortgage of real property, with 
or without an account of rents and profits, may be brought 
by the mortgagor, or those claiming under him, against the 
mortgagee in possession, or those claiming under him, un- 
less he or they have continuously maintained an adverse 
possession of the mortgaged premises for five years after 
^ breach of some condition of the mortgage," 

it was held that section 346 was inapplicable to the transaction 
in question, and that an action to redeem, brought March 15, 
1887, could not be maintained.'* 

In 1857, Chief Justice Murray said that since statutes of limita- 
tion affect only the remedy, and do not destroy the right, the 
legislature may by a repeal of such a statute revive a right which 
has not been extinguished but has been held in abeyance for 
want of a remedy to assert it; and distinguished cases from 
Louisiana and Texas on the ground that the doctrine of pre- 
scription there prevailed, which differed from the doctrine of 
limitations, in that the former confers a right, the latter takes 
away a remedy."* Section 1007 of our Civil Code, however, 
adopts the doctrine of prescription. Thus whatever view be taken 

»® Billings v. Hall, supra, n. 46. 

»i Allen V. Allen (1892), 95 Gal. 184. 30 Pac. 213, Beatty, C J., dis- 
senting, and among other things saying: **A law enlarging the period of 
limitations upon existing contracts is not a retroactive law, and it impairs 
no vested right." 

*2 Billings V. Hall, supra, n. 46. 



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228 CALIFORNIA LAW REVIEW 

of the correctness of the remarks of the Chief Justice (a ques- 
tion on which decisions in other states are not unanimous), in 
view of the code section, there is no doubt that it is now the law, 
as held in subsequent cases, that when a limitation on a right 
of action has once fully run, a subsequent repeal of the statute 
of limitation cannot be given the effect of re-establishing the 
right of action." Thus where section 321 of the G)de of Civil 
Procedure, as originally enacted, provided that in every action 
for the recovery of real property the legal title should prevail 
unless "the property has been held and possessed adversely to 
such legal title, for five years before the commencement of the 
action," and sections 322-326 defined the elements of adverse 
possession, one who, during the time that such provisions were 
in effect, had an adverse possession of land that fulfilled all the 
statutory requirements, thereby acquired a perfect title to such 
land; and notwithstanding he had not paid taxes on such land 
during the prescriptive period, the legislature, by the later amend- 
ment to section 325 adding the further prerequisite to adverse 
possession that the adverse claimant have paid all taxes on the 
land during the prescriptive period, did not have power to bring 
his title in question.** 

Finally, as already suggested, the time allowed by statutes 
of limitation must be reasonable: a statute cannot be so applied 
as to deprive a person of all remedy, nor so as to unreasonably 
restrict him in availing himself of the remedy which is given." 
"It has been often held that a limitation to one year, and even 
to six months, is not unreasonable, and does not impair the 
obligation of the contract nor deprive the obligee of an adequate 
remedy/'" In 1850 the statute defining the time for commencing 
civil actions, prescribed a limitation of five years for "an action 
upon a judgment or decree of any court of the United States, 
or of any state or territory within the United States." In 1855 
the legislature shortened the limitation to two years. It was 

"Swamp Land District No. 307 v. Glide, supra, n. 49; Peiscr v. 
Griffin (1899), 125 Cal. 9. 57 Pac 690; Weldon v. Rogers (1907), 151 Cal. 
432, 90 Pac. 1062. 

»* Sharp V. Blandenship (1881). 59 Cal. 288. 8 Pac. Coast L. J. 643. 

•'^Hibemia Savings & Loan Soc v. Jordan (1880). 2 (Dal. Unrcp. Cas. 
79, 5 Pac. Coast L. J. 381. judgment reversed on rehearing, under name. 
Hibernia Savings & Loan Soc. v. Hayes (1880), 56 Cal. 297, 7 C:al. Unrcp. 
Cas. 398, 6 Pac. Coast L. J. 686. 

w Tuttle V. Block, supra, n. 47. 



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INALIENABLE RIGHTS OF PROPERTY 229 

held that the amendatory act could not be applied so as to 
bar an action, brought October 12, 1856, upon an Ohio judg- 
ment rendered October 6, 1853: it must be construed as applying 
only to judgments not in esse at the time of its passage, or as 
giving two years from its passage upon judgments not then 
barred.*^ 

Extending time wherein execution may issue. — ^At the time 
a certain money judgment was rendered, section t8$ of the G>de 
of Civil Procedure did not permit a money judgment to be 
enforced after five years from its entry, but before the five year 
period had fully run on this money judgment the section was 
so amended as to provide that on all money judgments thereto* 
fore rendered, upon which the limitation had not yet fully nm, 
and upon all money judgments thereafter to be rendered, process 
might issue after the five year period by leave of court on 
motion, or by judgment for that purpose founded upon supple- 
mental pleadings. It was held that there could be no doubt of 
the constitutional power of the legislature to apply the amend- 
ment to the judgment in question.** 

Changing time to claim mechanic's lien. — ^Where in 1887 sec- 
tion 1 187 of the Code of Civil Procedure was so amended that 
the thirty day period within which a lien for materials bestowed 
in the construction of an unfinished building upon which work 
had ceased for thirty days ran at once, instead of from the final 
completion of the building, the amended section applied to a 
materialman who had already bestowed a part of the materials 
he had contracted to bestow at the time the amendment took 
effect, and a lien claimed by him within thirty days after the final 
completion of the building, and not within thirty days after the 
thirty days' cessation, was void.** 

Extending tim^ to file claim on contractor's bond. — ^An amend- 
ment enlarging from thirty days to ninety days the time within 
which after completion of any public work a person furnishing 
any labor, materials, or supplies in the performance of the work 
and seeking recourse on the bond of the contractor for payment 
for such work, must file with the public authority by which the 



»^ Scarborough v. Dugan (1858), 10 Cal. 305. 
»• Wcldon V. Rogers, supra, n. 53 ; Dodila v. Phillips, supra, n. 48. 
wKcrckhoflf-Cuzner Mill & Lumber Co. v. Olmstcad (1890), 85 C:al. 
80, 24 Pac 64a 



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230 CALIFORNIA LAW REVIEW 

contract was let, a verified statement of his claim, and enlarging 
from ninety days to six months the time within which after filing 
his claim the claimant might conmience his action on his claim, 
applies to a claim on a bond given before the passage of the 
amendatory act for payment for work not completed until after 
it took effect,*® or for materials supplied after such time.®^ 

Limiting time to present claim against decedenfs estate. — ^Thc 
provision of section 1493 of the Code of Civil Procedure that, 

"If a claim (against a decedent's estate) arising upon a 
contract heretofore made (by the decedent), be not presented 
(to his executor or administrator) within the time limited 
in the notice (to creditors), it is barred forever, except as 
follows: If it be not then due, or if it be contingent, it may 
be presented within one month after it becomes due or 
absolute," 

is not unconstitutional as unreasonably limiting and restricting 
the time to present his claim of a claimant whose claim did not 
become due until after the expiration of the time limited in the 
notice to creditors.®* 

And where the time to present a claim on a contract demand 
secured by mortgage had, under said provision, expired before 
section 1500 of the Code of Civil Procedure was amended so 
as to permit, in certain cases, without such presentation, an action 
to foreclose a lien or mortgage against property of a decedent's 
estate subject thereto, the latter amendment could not restore 
the claim to validity: the bar had become a vested right.®" 

Limiting time to assert title to land purchased at tax sale, — 
Where the time to redeem certain land from a sale for delinquent 
taxes expired December i, 1875, without a redemption having 
been made, and under the law then prevailing the purchaser was 
entitled thereafter, without any limitation of time, to demand a 
deed of the land from the tax collector, but by a statute of 
1885 he was required to get his deed within one year and three 
months or relinquish all rights, and the purchaser in question 
demanded a deed for the first time more than six months after 



«® Asbestos Mfg. & Supply Co. v. American Bonding Co. (1914), 25 
Cal. App. 641, 145 Pac. 107. 

«^ American Radiator Co. v. American Bonding Co. (1915), 27 (3al. 
App. 685, 151 Pac. 168. 

«2 Supra, n. 55. 

«» Supra, n. 55. 



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INALIENABLE RIGHTS OF PROPERTY 231 

the said period of limitation had expired, the amended provision 
applied to his case, and he was not entitled to the deed.®* 

3. PARTICULAR CHANGES IN REMEDIAL RIGHTS AS IMPAIRING 

VESTED RIGHTS. 

Providing additional mode of contesting applicc^tion to pur- 
chase state land, — In 1901, defendant made application by affi- 
davit pursuant to section 3443 of the Political Code to purchase 
certain state land. Under the law then prevailing his right to 
purchase was open to question at any time prior to the issuance 
of patent through a contest initiated in a superior court on the 
demand of any other applicant to purchase the same land, and 
doubtless also through an action brought for that purpose by 
the state. In 1903, this section was amended so as to provide 
that if it was made to appear to the surveyor general by counter 
affidavit that when the application to purchase was made the 
counter affiant or those under whom he claims had been in the 
actual possession of said land or any part thereof for farming 
purposes for ten years next prior to said application and had 
reclaimed and cultivated the same, or that the affidavit of the 
applicant was false in any material particular, the surveyor 
general must refer the question so raised to a certain superior 
court for adjudication according to a procedure outlined. It 
was held that this amendment affects the remedy only, and may 
properly be invoked for determining the validity of the applica- 
tion in question, without violating any constitutional guaranty.®* 

Providing additional modp of terminating right to purchase 
state land. — A statute,*® enacted in 1867, provided for the sale 
of school lands at one dollar and twenty-five cents per acre, 
"payable twenty per cent .... within fifty days from the date 
of the certificate of location issued to the purchaser by the sur- 
veyor general; the balance, bearing, interest at the rate of ten 
per cent per annum in advance .... within one year after 
the passage of any act of the legislature requiring such payment, 

•* Tuttle V. Block, supra, n. 47. 

«»Boggs V. Ganeard (1906), 148 Cal. 711, 84 Pac. 195, the court saying: 
"A change in the law to this extent affects only the remedy, and disturbs 

or impairs no existing legal right Having the right to provide for 

the inquiry as to whether the claim of the applicant is valid in such 
manner as it sees fit, subject to the limitation as to impairment of vested 
rights, the state may authorize such an inquiry to be instituted and main- 
tsuned by any officer or person or class of persons." 

•• Cal. Stats. 1867, p. 415. 



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232 CALIFORNIA LAW REVIEW 

or before, if desired by the purchaser;" for the preparation and 
forwarding annually to the District Attorney of each county of 
a list of all lands in his county upon which "pa)rments have not 
been made according to law ;" that upon receipt of the delin- 
quent list, the District Attorney, after fifty days' notice by pub- 
lication in a newspaper, shall conunence an action for strict fore- 
closure of the interests of all purchasers who have not in the 
meantime paid the amounts owing by them with costs of publi- 
cation, and that by making payment of the amount due the 
state and of all costs, within twenty days after entry of judg- 
ment of foreclosure, any purchaser may redeem. In 1889 it 
was provided that whenever the holder of a certificate of pur- 
chase of state lands, issued before March 27, 1872, had failed 
to pay for five years "arrears of principal or of interest due to 
the state for said land, and the state shall .... have issued a 
certificate of purchase for the same land, or any part thereof, 
to a subsequent purchaser, then, unless the holder .... of such 
prior certificate shall pay the entire residue of the interest re- 
maining unpaid for such purchase within six months from and 
after the passage of this act, such holder .... shall be deemed 
to have lost all right to the land .... or to complete the pur- 
chase of such land, and all moneys heretofore paid to the state 
.... on such purchase shall be deemed .... forfeited to the 
state." Pursuant to the act of 1868, the initial payment of twenty 
per cent on the purchase price of certain school lands was paid 
in July, 1869, the certificate of purchase issued, and interest paid 
to January, 1873; but no further sum was paid or tendered on 
account of the purchase until 191 1. Meanwhile, in December, 
1886, a certificate of purchase for the same lands was issued to 
another purchaser, who completed his purchase in 191 1. In this 
situation, the application to the first purchaser and his assignee 
of the act of 1889, and consequent termination of their right to 
purchase and forfeiture of payments made and of all right to 
the lands, does not impair the obligation of any contract. It 
is no ground for complaint that the state has established a new 
method of declaring a forfeiture different from that authorized 
by the act of 1868, especially as the later act is more liberal 
than the earlier in that it gives a longer period of redemption.*^ 

e^Aikins V. Kingsbury (1915). 170 Cal. 674, 151 Pac 145. 



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INALIENABLE RIGHTS OF PROPERTY 233 

Requiring additional notice of sale by the state of land sold 
to it for taxes. — The 1905 amendment to section 3897 of the 
Political G>de, requiring that in case of the sale by the state of 
land sold to it for taxes, the tax collector authorized to make 
the sale must, in addition to the notice of such sale theretofore 
required by said section to be given by such tax collector by 
publication, also mail a copy of said notice with postage pre- 
paid to the last person to whom the land had been assessed, if 
his address is known, is applicable to a sale of such land made 
after the amendment took effect, although the sale was authorized 
and notice published before it took effect.®* 

Giving or taking away a right of personal action on a local 
assessment, — ^The San Francisco Consolidation Act, in reference 
to local assessments for street work, in addition to a remedy 
for the enforcement of the assessment lien, provided in section 
59 that an action could be maintained by the contractor for work 
done and materials furnished at street crossings against the 
several owners liable therefor. Afterwards this section was re- 
pealed. Subsequently the provisions of the Consolidation Act 
were revised, and the revisory act allowed a personal judgment 
against the owner of property assessed, in actions for the fore- 
closure of the assessment liens. 

While section 59 was in force certain street work was done 
in San Francisco under contract therefor, and while the act 
of 1861 was in force certain other street work was done. To 
pay for each a local assessment was levied, but in each case the 
respective enactment was repealed as above set forth before 
the collection of the assessment. It was held that the first con- 
tractor, notwithstanding the repeal of section 59, could main- 
tain the action authorized thereby: to withdraw the personal 
liability would impair the obligation of his contract pro tanto.** 
On the other hand, the second contractor could not avail him- 
self of the personal recovery authorized by the act of 1862: 



•«Buck V. Canty (1912), 162 Cal. 226, 121 Pac. 924. the court saying: 
The amendment simply affects a change in the method b>r which the right 
may be exercised; a change in the remedy whereby additional opportunity 
is given to the former owner before an actual sale to regain his property 
by redemption without impairing the rirht of the state to proceed to sell 
in case he does not" 

••Creighton v. Pragg (1862), 21 Cal. 115. 



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234 CALIFORNIA LAW REVIEW 

such a recovery could not be had on a contract made while the 
act of 1861 was in force.^® 

Changing rules of evidence, — It is said that it is competent 
for the legislature at any time to change or modify the rules of 
evidence and the degree of proof and make such alterations ap- 
plicable to pending cases.^^ 

Section 1880 of the Code of Civil Procedure, which as 
amended, went into effect in 1874, provided that "parties to an 
action or proceeding, or in whose behalf an action or proceeding 
is prosecuted, against an executor, or an administrator, upon a 
claim or demand against the estate of the deceased" could not be 
witnesses. Before the enactment of such amendment there was 
no such disqualification to testify. An action against the exe- 
cutors of a decedent's estate was commenced June 9, 1873, upon 
a rejected claim against the estate, but was not brought to trial 
until July 30, 1874. The amendment applied, and it was error 
to admit in evidence the plaintiff's deposition, taken October 10, 
1873." 

The California statutes nowhere declaring that the destruc- 
tion of a will without intent to revoke or by accident operates to 
revoke the will, and the procedure for the probate of wills being 
established only to furnish an exclusive mode for the settlement 
of all disputes concerning the execution of wills and conclusive 
evidence of their contents, and not being the foundation of the 
rights of those claiming under wills nor having the effect of bring- 
ing wills admitted to probate into legal existence, the heirs of a 
decedent who died while it was in force have no vested right in 
section 1339 of the Code of Civil Procedure, providing as enacted 
1872, that, 

"No will shall be proved as a lost or destroyed will, unless 
the same is proved to have been in existence at the time of 
the death of the testator, or is shown to have been fraudu- 
lently destroyed in the lifetime of the testator, nor unless its 
provisions are clearly and distinctly proved by at least two 
credible witnesses;" 
accordingly where after the death of the testatrix, and the filing 

ToCreighton v. Manson (1865), 27 Gal. 614. 

71 Himmelman v. Carpentier (1873), 47 Cal. 42; (rules of evidence); 
Mitchell V. Haggenmeyer (1875), 51 Cal. 108, (rules of evidence) ; In re 
Patterson's Estate (1909), 155 (Tal. 626, 102 Pac. 941, 132 Am. St. Rep. 
116, (rules of evidence and degree of proof). 

72 Mitchell v. Haggenmeyer, supra, n. 71. 



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INALIENABLE RIGHTS OF PROPERTY 235 

of the petition for the probate of her will, section 1339 was 
amended so as also to permit the proof of a lost or destroyed 
will where it is shown to have been "by public calamity destroyed 
in the lifetime of the testator, without his knowledge," and it 
appeared that her will was destroyed in her lifetime in the great 
San Francisco fire of April 18, 1906, without her knowledge, the 
will was rendered capable of proof and probate.'* 

It also appears that the legislature is authorized to give the 
official papers of public officers the effect of prima facie evidence 
of designated facts. A statute directing that in civil actions to 
recover taxes, the delinquent tax lists, duly certified, shall be evi- 
dence to prove the delinquency of the tax, the property assessed 
" and that all the forms of law in relation to the levy and assess- 
ment of such taxes have been complied with" is not open to con- 
stitutional objection.'* 

It has also been held that an action to collect a local assess- 
ment brought while a statute was in force giving certain weight 
to the record of the assessment as evidence, is to be governed by 
this statute, and not by the presumptions created by a statute 
which was in existence when the work was done.'' 

Prior to 1872 an undivided interest in certain lands had been 
conveyed to husband and wife. Both under the statute in effect 
before the enactment of the code and under the codes as enacted 
1872 the Supreme G)urt many times held that in the absence of 
clear and convincing proofs that property acquired by husband 
or wife after marriage was acquired in such way as to make it 
separate property, or was taken in exchange for separate property, 
it was presumed to be conununity property. Prior to 1889, the 
Civil Code read that: "All other property acquired after mar- 
riage by either husband or wife, or both, is community property." 
In 1889 this was amended by the addition of the following: 

"but whenever any property is conveyed to a married woman 
by an instrument in writing, the presumption is that the title 
is thereby vested in her as her separate property. And in case 
the conveyance be to such married woman and her husband, 
or to her and any other person, the presumption is that the 
married woman takes the part conveyed to her as tenant in 
common, tmless a different intention is expressed in the 

^»In re Patterson's Estate, supra, n. 71. 
^* People V. Seymour (1860), 16 Gal. 332. 
^> Himmelman v. Carpcntier, supra, n. 71. 



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236 CALIFORNIA LAW REVIEW 

instrument, and the presumption in this section mentioned is 
conclusive in favor of a purchaser or incumbrancer in good 
faith and for a valuable consideration/' 

The court held that the rule declared by the amendment was 
more than a rule of evidence, that it was a rule of property, that 
the legislature did not have the power to apply it so that it wotild 
be retroactive and in effect disturb titles already vested, and that 
the changed presumption did not apply to the ownership of the 
undivided interest in question.^* 

Awarding specific relief in certain cases. — ^Where the Specific 
Contract Act,^^ provided that, 

"In an action on a contract or obligation in writing, for the 
direct payment of money, made payable in a specified kind of 
money or currency, judgment for the plaintiff, whether the 
same be by default or after verdict, may follow the contract 
or obligation, and be made payable in the kind of money or 
currency specified therein;" 

and required the sheriff to collect on execution in satisfaction of 
a judgment only the kind of money specified therein, it was held 
that there was no constitutional objection to the application of 
the provisions of the act in an action brought after the passage 
thereof on a note executed prior thereto in view of the fact that 
the act was purely remedial/® 

Changing the right to, or effect of, an appeal. — Article 6, 
section 4j4, of the state constitution, forbidding a court to set 
aside a judgment or grant a new trial unless of opinion that the 
error complained of resulted in a miscarriage of justice, affects 
the remedy only. While originally applicable only in criminal 
cases, it now applies in all cases, including civil appeals to the 
supreme court then pending, although submitted prior to its 
adoption/* "A party has no contractual or vested right to have 
a judgment reversed because of an error which the court -cannot 
say has produced what that section describes as a 'miscarriage 
of justice' .... Doubtless the people could, by constitutional 



w Jordan v. Fav (1893), 98 Cal. 264. 33 Pac 95. 

" Cal. Stats. 18(S3. p. 687. 

^«Carpentier v. Athcrton (1864), 25 Cal. 564; (^alland v. Lewis (1864). 
26 Cal. 47. 

T»Vallcjo & Northern R. R. Co. v. Reed Orchard Co. (1915). 169 Cal. 
545, 147 Pac 23a 



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INALIENABLE RIGHTS OF PROPERTY 237 

amendment, abolish the right of appeal and require the dismissal 
of appeals remaining undetermined."*® 

Exemptions, — By the earliest practice in this state, property 
of municipal corporations, whether unimproved lands owned by 
them, municipal buildings, or other property, having been subject 
to sale on execution for municipal debts, a law passed in 185 1 
exempting from sale on execution all property of San Francisco 
city necessary for municipal purposes, was void as against one 
who at the time of the passage of the act was owner and holder 
of subsisting unpaid indebtedness of the city, as impairing the 
obligation of his contract with the city.** In reaching this con- 
clusion, Chief Justice Murray, speaking for the court, said: 

"There is, I think, no well-defined middle ground between 
holding that none of the debtor's property can, by a subse- 
quent law, be withdrawn from the reach of the creditor, or 
else, admitting that the whole of his estate may be exempted 
from sale on execution .... Such property as was subject 
to execution at the time the debt was contracted must remain 
subject to execution until the debt is paid. As to future 
obligations, the legislature may make the exemption as broad 
as it pleases. It may abolish credit altogether, but it cannot 
legislate backward, and annul the force of prior obligations." 

On the other hand, in a case where at the time that the debt 
was incurred no right to sue a county existed, but later this right 
was given by statute, it was held that the execution issued in a 
suit under this statute was subject to exemptions created by a 
statute passed prior to the statute conferring the right to sue.*' 

Limiting right to abandon certain condemnation proceedings. — 
The amendment in 1909 to the City Street Improvement Act of 
1903, whereby the right of a city to abandon a condemnation 
proceeding instituted by it under the act was limited to abandon- 
ment before the entry of interlocutory judgment in such proceed- 
ing, instead of being authorized, as before, at any time before the 
pa3rment of the compensation for the property condemned, is 
properly applied to a condemnation proceeding brought by Los 
Angeles city and pending at the time the amendment took effect, 
in which interlocutory judgment was not rendered until almost 



••Supra, n. 79. 

•1 Smith v. Morse (1852), 2 CaL 524. 

s'Gilman v. Contra Costa County (1857), 8 Cal. 52, 68 Am. Dec. 290. 



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238 CALIFORNIA LAW REVIEW 

nine months after the amendment took eflFect, and so applied does 
not violate any constitutional right.*** 

Annexing right to interest to past due demands. — The legis- 
lature has power to impose on all debtors interest from the date 
of the legislation imposing it, by way of compensation for the 
delay in the payment of money already due. Thus under section 
1369 of the Civil Code, providing that "Legacies bear interest 
from the time when they are due and payable, except that legacies 
for maintenance, or to the testator's widow, bear interest from 
the testator's decease," where certain specific legacies had become 
due and payable before the code took effect, they bear interest 
from the time it took effect, though before the enactment of the 
code interest was not allowable on legacies.'* 

IV. Particular Remedial Rights as Essential. 

Injunctive relief in certain cases, — Should the statute*' passed 
in 1903, declaring, among other things, that no restraining order 
nor injunction shall be issued with relation to any agreement, 
combination, or contract to do or procure to be done, or not to 
do or procure not to be done, any act in contemplation or further- 
ance of any trade dispute between employers and employees 
within the state, be construed as undertaking to render a court 
powerless to grant a restraining order or injunction enjoining one 
from obstructing another in the conduct of the latter's business by 
stationing pickets, carrying placards and the like with the words 
'^unfair," "please don't patronize," and the like, upon them, in the 
immediate vicinity of the latter's place of business, or intimidatmg 
the latter's employees or customers, such act would to that extent 
be void as violating inalienable rights of property.** 

Civil action against decedenfs estate. — It seems that presenta- 
tion to the executor or administrator, as authorized by the Code 
of Civil Procedure, is, in the first instance, a sufncient remedy on 



8»TiUe Ins. & Trust Co. v. Lusk (1911). 15 Cal. App. 358, 115 Pac. 53, 
the court saying: "This section affects a remedy as distinguished from a 

right It cannot .... be said that this section imreasonably 

impaired the remedy in the case under consideration." 

«* Dunne v. Mastick (1875), 50 Cal. 244. 

«« Cal. Stats. 1903, p. 289. 

88 Goldberg Bowen & Co. v. Stablemen's Union (1906), 149 Cal. 429, 
86 Pac. 806, 117 Am. St. Rep. 145, 8 L. R. A. (N. S.) 460, 9 Ann. Cas. 
1219; Pierce v. Stablemen's Union (1909), 156 (ial. 70, 103 Pac 324. 



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INALIENABLE RIGHTS OF PROPERTY 239 

a claim against a decedent's estate.*^ Thus section 1500 of the 
Code of Civil Procedure as enacted 1872 provided that, 

"No holder of any claim against an estate shall maintain any 
action thereon, unless the claim is first presented to the execu- 
tor or administrator, except in the following case : An action 
may be brought by any holder of a mortgage or lien to enforce 
the same against the property of the estate subject thereto, 
where all recourse against any other property of the estate is 
expressly waived in the complaint." 

This was amended in 1873 by eliminating the exception therefrom, 
thereby requiring presentation in every case. It was said by cer- 
tain justices that this amendment did not divest any vested right of 
a mortgagee, but related to his remedy only, and could be applied 
in every case.®® 

Remedies of creditors of corporations. — The fact that the only 
notice required, in case of proceedings for the voluntary dissolution 
of corporations is by publication in a newspaper of the county not 
less than thirty days nor more than fifty days, or if there is no 
newspaper, then by posting in three of the principal public places 
of the county, does not render such proceedings void as restricting 
the opportunity of creditors of corporations thereby dissolved to 
recover and impairing the obligation of contracts. Section 400 of 
the Civil Code provides : 

"Unless other persons are appointed by the court, the directors 
or managers of the affairs of a corporation at the time of its 
dissolution are trustees of the creditors and stockholders or 
members of the corporation dissolved, and have full power to 
settle the affairs of the corporation." 

The debts of a corporation are not vacated by its dissolution.®* 

V. Particular Remedial Rights as Subversive of 
Inalienable Rights. 

Awarding counsel fees in certain cases, — ^That portion of 
section 1195 of the Code of Civil Procedure, providing with refer- 
ence to actions to foreclose the liens of mechanics and others that, 
"The court must also allow, as a part of the costs, .... rea- 
sonable attorney's fees in the superior and supreme courts, 
such .... attorney's fees to be allowed to each lien claimant 
whose lien is established, whether he be plaintiff or defendant. 



»» Supra, n. 55. 
•• Supra, n. 55. 
••Grossman v. Vivicnda Water Co. (1907), 150 Gal. 575, 89 Pac 335. 



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240 CALIFORNIA LAW REVIEW 

or whether they all join in one action or separate actions are 
consolidated," 
violates inalienable rights of property .•^ 

Charles M. Bufford. 
San Francisco, California. 



•0 Builders' Supply Depot v. O'Connor (1907), ISO Cal. 265, 88 Pac 
962, 119 Am. St Rep. 193, 17 L. R. A. (N. S.) 909, 11 Ann. Cas. 712. 



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California Law Review 

Pablished by the Faculty and Students sf the School sf Jurisprudence sf the 
University sf California, and issued Bi-monthly throughout the Year 3^ 3^ ^ 



Subscriptioo Price, $2.50 Per Year Single Copies, 50 Cents 

ORRIN K. McMURRAY, Editor-in-Chief 
MATT WAHRHAFTIG, Student Editor-in-Chief 

M. C. LYNCH, Business Manager 

S. F. ROLLINS, Student Business Manager 

ROSAMOND PARMA. Secretary 



Faculty Board of Editors 

A. M. KIDD 
WM. CAREY JONES A. P. MATTHEW 

WM. E. COLBY M. C. LYNCH 

M. E. HARRISON J. U. CALKINS, Jr. 



Student Board of Editors 

JACOB GOLDBERG, W. A. SITTON, 

Associate Editor Associate Editor 

S. M. Arndt J. C. Nichols 

E. W. Davis O. C. Parkinson 

R. E. HoYT Esther B. Phillips 

L. N. Hamiltoic Carol A. Rehfisch 

H. A. Jones J. B. Whitton 

J. L. Knowles Frances H. Wilson 



Elizabeth Josselyn Boalt — 
An Appreciation 

EUZABETH JOSSELYN BOALT, widow of John Henry 
Boalt, died at Santa Barbara on Saturday, February lo, 191 7. 
A telegram from eastern friends, read at her funeral, contains 
this tribute to her worth and character: "As lifelong friends of 
Elizabeth Josselyn Boalt we send this message of love and sor- 
row, together with our gratitude for the blessed course and peace- 
ful end of a sweet, strong, unselfish, patient, victorious, and help- 
ful earthly life which is now continued in the world invisible." 
These expressions of appreciation have a peculiarly vivid 



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242 CALIFORNIA LAW REVIEW 

meaning to those who know the details which give them their 
just foundation. 

Judge Boalt's death in 1901 had taken from his wife the 
companionship of one who had so impressed Robert Louis Steven- 
son that he said of him that he was "the finest type of the Ameri- 
can gentleman he had ever met." The untimely death of their 
much beloved and only daughter — a woman of great beauty and 
charm — ^had been a very severe blow to them both, a blow from 
which Judge Boalt never recovered. 

A little granddaughter remained to Mrs. Boalt, and upon this 
child she centered her aflFections. It was when this little girl 
of ten — the last descendant of their line — ^was taken away and 
Mrs. Boalt was left as it were utterly alone, that she wrote me 
from Europe these words: "I shall not wear my sorrows on my 
sleeve. My tears shall be shed in the privacy of my own closet. 
I shall not, during my remaining years, cast a gloom over the 
happiness of those about me." 

Hundreds of friends on two continents can bear witness that 
Mrs. Boalt lived out her days in strict fidelity to the courageous 
philosophy which she thus expressed. 

She recognized that the best earthly anodyne for sorrow is 
to be found in mental occupation. She had been an accomplished 
pianist in her younger days and she turned again to her music. 
Although some sixty years of age she enrolled in Vienna as a 
pupil of the celebrated Leschetizky and devoted much time each 
day to her work. In Rome and Florence she added Italian to 
her knowledge of German and French. 

like Judge Boalt she found congenial companionship in the 
society of artists, musicians, and literary people. She traveled 
extensively, occasionally making long stops in the cities both 
of Europe and America, where she could enjoy the world's best 
music with friends who, like herself, were music lovers. 

Mrs. Boalt did not talk of her sorrows. On the contrary 
she radiated cheerfulness and made the world sunnier and brighter 
for those about her. While she spoke without hesitation in con- 
versation with friends, of her husband, her daughter and her 
grandchild, this was never attended by a suggestion of selfish 
grief or pent up emotion. And yet to more than one who knew 
her well, she has unconsciously betrayed by a pressure of the 



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ELIZABETH JOSSELYN BOALT 243 

hand, or a turning away of the head when some chord was 
touched, the weight of the burden which she was carrying in 
her heart. 

Elizabeth Josselyn Boalt was bom in Hanover, Massachusetts, 
on the 30th day of June, 1842. Her musical education was com- 
pleted in Europe. On July 31, 1866, she was united in marriage 
with John Henry Boalt at Waverly, Massachusetts. More than 
thirty years ago a mutual friend told me that the Judge and 
Mrs. Boalt were the real hero and heroine of Howells' charm- 
ing novel, "The Lady of the Aroostook," — that she and the 
Judge had first met on a clipper ship when she, as Elizabeth 
Josselyn and just out of her teens, was on her way to Europe 
for music, while the Judge, then a young man of about twenty- 
four, was sailing toward Freiberg to complete his studies as a 
mining engineer.* A few years since I taxed Mrs. Boalt with 
this romance and she laughingly and almost bashfully admitted 
that the clipper-ship part of the story was true enough and that 
friends were said to have told the story to Howells and thereby 
to have suggested the plot of his novel; but she added that 
whether or not he had actually made use of it, she really could 
not say. 

In 1867 Judge Boalt took his bride to Nevada, where they 
lived until 1871. It was during this time that he occupied the 
bench of a District Court of Nevada. In 1871 the family moved 
to Oakland, California, and Judge Boalt entered the practice of 
the law in San Francisco. They were still living in Oakland at 
the death of Judge Boalt in 1901, but later on Mrs. Boalt took 
up her residence in San Francisco, and she still considered San 
Francisco her domicile at the time of her death. 

In 1906 she gave property to the value of one hundred 
thousand dollars for the erection of the Boalt Memorial Hall 
of Law. In the same year she created a further trust whereby, 
subject to a life estate and certain powers of revocation, she 
transferred substantially all of her remaining estate "to estab- 
lish and endow a professorship in the Department of Jurispru- 
dence in the University of California, to be known as the 'John 
H. Boalt Professorship of Jurisprudence.'" 

* Judge Boalfs knowledge of mines was of much value to him later in 
his legal work in mining cases both in Nevada and California. 



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244 CALIFORNIA LAW REVIEW 

In 1912, sometime after the erection and dedication of the 
Boalt Memorial Hall of Law, Mrs. Boalt modified the fore- 
going provision by permitting a latitude as to the precise chair 
or professorship so to be established and endowed with the trust 
fund. By this modification the fund is to remain as a perma- 
nent endowment "for such chair or chairs as my said trustees, 
or their successors, may designate and determine, or, in lieu 
of such designation, as the said Board of Regents shall deter- 
mine." And it is further provided that in the discretion of the 
trustees, or of the Board of Regents, the whole or a part of the 
endowment may go for or toward "the salary of such person 
as shall, from time to time, be the Dean of the Faculty of the 
Department of Jurisprudence." This endowment will approxi- 
mate two hundred thousand dollars. 

It is gratifying to note that in the instrument of the 15th 
of March 1912, Mrs. Boalt thus expresses herself: "I desire here 
to record the pleasure and satisfaction that I have found in 
having contributed to the construction of the Boalt Memorial 
Hall of Law." 

While her public benefactions are well known, Mrs. Boalt 
guarded from the knowledge of the world her very many acts of 
private kindness as jealously as she concealed her personal sor- 
rows. It is perhaps enough to say, even now, in this regard 
that to the knowledge of the writer many persons to whom life 
has proved a struggle have been helped and encouraged by Mrs. 
Boalt in very practical and substantial ways. This is particu- 
larly true among artists, musicians, and writers of her ac- 
quaintance. 

She felt that through the medium of the work which would 
be accomplished for State and Nation within the walls of the 
Boalt Memorial Hall of Law the ideals of her distinguished 
husband would live on and on. It is perhaps not too much to 
say that in the splendid spirit of fortitude shown by Mrs. Boalt in 
the last twenty years — a fortitude to which she was undoubtedly 
aided by her husband's sound philosophy of life — the character 
of Judge Boalt found a memorial even more beautiful than any 
which it was in the power of architecture to erect. 

Charles S, Wheeler. 

San Francisco, California. 



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Comment on Recent Cases 

Act to Regulate Commerce: Long and Short Haul 
Clause: Judicial Review of Orders of Interstate Commerce 
Commission.— The United States Supreme Court has held in 
numerous cases that the Interstate Commerce Commission has 
virtually irreviewable discretion in administering the Act to Regu- 
late Commerce within the limits fixed by the constitution and the 
statutes.^ In the Intermountain Rate Cases, (United States v. 
Atchison, Topeka & Santa Fe Railway Company),^ it was ruled 
that the 19 lo amendment to the fourth section of the act (long 
and short haul clause)* transferred from the carriers the primary 
function of determining whether lower rates might be made for 
longer than for shorter hauls, displacing the mere reviewing power 
previously reposed in the Commission. It was further pointed 
out that the authority conferred upon the Commission to prescribe 
the extent to which relief from the restraints of section 4 might 
be given, comprehends the authority to fix the relationship between 
the rates to the more distant and the intermediate points. In the 
case of United States v. Merchants^ and Manufacturer^ Traffic 
Association of Sacramento et al.* the Supreme Court finds it neces- 
sary to reapply these principles, and in so doing reverses the de- 
cision of the District Court of the United States for the Northern 
District of California.* 

In the Spokane* and Reno^ cases, the Interstate Commerce 
Commission granted relief from the restraints of the long and 
short haul clause on west-bound transcontinental traffic, but at- 
tached as a condition to that relief a requirement that rates to 
intermediate points, such as Reno and Spokane, should not exceed 

1 Baltimore & Ohio R. R. Co. v. U. S. (1910), 215 U. S. 481, 495, 54 
L. Ed. 292, 297, 30 Sup. Ct. Rep. 164; Interstate Commerce Commission v. 
Delaware, L & W. R. R. Co. (1911), 220 U. S. 235, 251, 55 L. Ed. 448, 
456, 31 Sup. Ct. Rep. 392; Interstate Commerce Commission v. U. P. R. R 
Co. (1912), 222 U. S. 541, 547, 56 L. Ed. 308, 311, 32 Sup. Ct. Rep. 108; 
Interstate Commerce Commission v. Louisville & N. R. R. Co. (1913), 
227 U. S. 88, 92, 57 L. Ed. 431, 433, 33 Sup. Ct. Rep. 185; Atchison, T., 
& S. F. Ry Co. V. U. S. (1914), 232 U. S. 199, 221, 58 L. Ed. 568, 34 Sup. 
Ct. Rep. 291; Los Angeles Switching Case (Interstate Commerce Com- 
mission V. Atchison, T., & S. F. Ry (fo.) (1914), 234 U. S. 294, 58 L. Ed. 
1319, 34 Ct. Rep. 814. See 3 California Law Review, 50. 

« (1914), 234 U. S. 476, 58 L. Ed. 1408, 34 Ct. Rep. 986. See 2 Cali- 
fornia Law Review, 491. 

«36 Stats, at L. 539, 547, amending section 4 of the Act to Regulate 
Commerce (24 Stats, at L. 380, 104). 

* (Dec. 4, 1916), 242 U. S. 178, 37 Sup. Ct Rep. 24. 

» Merchants' & Manufacturers' Traffic Association of Sacramento v. 
U. S. (1915), 231 Fed. 292. 

•City of Spokane v. Northern Pac. Ry. Co. (1911), 21 I. C. C. 400. 

»R R. Commission of Nevada v. S. P. Co. (1911), 21 I. C. C. 329. 



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246 CALIFORNIA LAW REVIEW 

by more than certain fixed percentages the rates concurrently in 
effect to Pacific Coast terminals. The validity of the Commis- 
sion's action was attacked by the carriers but sustained by the 
Supreme Court in the Intermountain Rate Cases.® Immediately 
following the decision vindicating the Commission's authority, the 
carriers made application for a modification of the initial order, 
with a view to securing additional relief made necessary by the 
intensified competition of water carriers operating through the 
Panama Canal. After due hearing certain additional relief was 
granted by the Commission,® which, however, so restricted its 
grant as to allow a full measure of relief only as to rates to ports 
of call. A lesser measure of relief was permitted as to rates to 
intermediate points not directly served by the water lines. The 
necessary effect of this order was to eliminate from the list of 
Pacific Coast terminals enjoying water-compelled rates one hundred 
and eighty-five "interior terminals" which had been upon a parity 
with the water terminals proper. The commercial interests of 
Sacramento, Stockton, San Jose, and Santa Clara, which were 
among the cities thus deprived of the rate advantages which they 
had previously enjoyed, challenged the Commission's order upon 
the ground that it was not responsive to the application filed by 
the carriers under section 4, and therefore, represented an excess 
of jurisdiction. The lower federal court sustained this contention, 
holding that the relief g^nted be immediately responsive to that 
applied for, and that, inasmuch as the carriers had sought authority 
to maintain lower rates to all points then known as terminals than 
to intermediate points, the Commission could not competently 
restrict the relief granted to a limited number of the points in- 
volved and thereby impel the establishment of higher rates to the 
remainder. The Supreme Court, in reversing the District Court, 
points out that the broad discretion enjoyed by the Commission 
would be rendered nugatory if the courts were permitted so nar- 
rowly to construe the Commission's authority. 

It would seem clear that the Commission is not restricted to 
the mere alternatives of approving or disapproving applications 
for relief under section 4 in the form in which they are presented. 
The express grant of power to prescribe the extent of relief in 
specified cases comprehends the power to grant relief as to certain 
points and deny it as to others, and to impose such conditions 
as administrative discretion may suggest. The circumstance that 
a readjustment of rates not contemplated by the carriers' appli- 
cation may result from the Commission's order does not go to 
the question of power. 

/. L. K, 

® Supra, n. 2. 

•Commodity Rates to Pacific Coast Terminals and Intermediate Points 
(1915), 32 I. C. C. 611, 34 I. C. C. 13. 
1® Supra, n. 5. 



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COMMENT ON RECENT CASES 2^7 

Conflict of Laws: Legitimacy: Succession. — ^What law 
should determine who are children under a statute of succession? 
According to Wolf v. GalP it is the law of the situs of the realty. 

In the principal case the paternal grandmother of children bom 
outf of wedlock, whose natural father was domiciled outside of 
California, died intestate possessed of real property in this state. 
The court decided that as the subsequent marriage of the parents 
of such children would work a legitimation by virtue of section 
215 of the Civil Code, the marriage of the natural parents con- 
stituted a legitimation for the purpose of succession under section 
1386 of the Civil Code. The court declared that while it is gen- 
erally true that the laws of one state or country have no extra- 
territorial effect, on the other hand, when the status of a person 
is under consideration before the courts of this state in questions of 
succession, they will apply our own statutes in determining the 
status of the claimant to the succession; and if the claimant shows 
that by applying our law he is entitled to take as a legitimate 
child it is sufficient, and the fact that by the law of his own country 
he is not legitimate is immaterial. 

While it is undisputed that the lex rei sitae governs the suc- 
cession to or disposition of immovables,^ the general rule is that 
the law of the father's domicile should be the proper law to de- 
termine legitimation for the purposes of succession to the father's 
property under a statute of the situs.^ Thus where the act or event 
working a legitimation by the lex rei sitae does not constitute a 
legitimation by the law of the father's domicile, the children bom 
out of wedlock are not generally considered legitimated for the 
purposes of inheriting realty as the legitimate children of the 

1 (Dec. 9, 1916), 23 Gal. App. Dec. 910; rehearing denied, Feb. 7, 1917. 

2 Hall V. Gabbert (1904), 213 111. 208, 72 N. E. 806; Olmstead v. Olm- 
stead (1909), 216 U. S. 386, 54 L. Ed. 530, 30 Sup. Ct. Rep. 292; Dicey 
Conflict of Laws (2d ed.), p. 504; Tiedeman, Real Property (2d ed.), §644; 
3 Washburn, Real Property (4th ed.), §32. 

•Dayton v. Adkisson (1889), 45 N. J. Eq. 603, 17 Atl. 964, 14 Am. St. 
Rep. 763, 4 L. R. A. 488; De Wolf v. Middleton (1895), 18 R. I. 810, 26 
Atl. 44, 31 Atl. 271, 31 L. R. A. 146; 1 Wharton, Conflict of Laws, 
(3d ed,), p. 552. See note in 65 L. R. A. 177. Contra: Sneed v. Ewing 
(1831), 5 J. J. Marsh, 460, 22 Am. Dec. 41. 

In Blythe v. Ayres (1892), 96 Cal. 532, 31 Pac. 915, 19 L. R. A. 40, it 
was held that the law of California, the lex rei sitae, fixed the status of 
the child for the purposes of inheritance; but the decision appears to be 
on the ground that the father was domiciled here and it seems assumed 
throughout that if he had been domiciled in England, the law of England 
would have governed. See I Wharton, Conflict of Laws (3d ed.), p. 555 n. 
This case rested also on the succession of illegitimates under CsA. Civ. 
Code, § 1387. 

The rule that a child not legitimate according to English law cannot 
inherit land in England does not operate against the general rule, for the 
lex rei sitae requires not only that the child be legitimate, but that he must 
have been actually born in wedlock in order to so inherit. Birtwhistle v. 
Vardill (1839), 7 CI. & F. 895, 7 Eng. Rep. R. 1308; Doe v. VardiH 
(1839), West, 500, 9 Eng. Rep. R. 578. 



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248 CALIFORNIA LAW REVIEW 

father.* Conversely, where the act or event working a legitima- 
tion by the lex domicilii patris does not constitute a legitimation 
by the lex rei sitae, such children are generally considered legiti- 
mated for such inheritance.* This general rule is grounded on 
the principles that the lex domicilii should control the status or 
condition of a person and the relation in which he stands as to 
other persons® and that the legitimation of the child, being the 
creation of a status which is for most purposes beneficial to him, 
should be presumed in his favor whenever the lex domicilii patris 
will permit it.^ 

In order to apply this general rule that legitimation for suc- 
cession as the child of the father should be determined by the lex 
domicilii patris, it is necessary in the present case to consider the 
nature of section 215 of the Civil Code. If it is a statute of 
descent, merely descriptive of a class of illegitimates who are 
thereby authorized to inherit the property, as is the nature of 
section 1387 of the Civil Code,® the fact that the father was 
domiciled outside the state will not deprive the children of any 
rights which the state may have given them in the estate of tlie 
intestate. But if it is to be construed purely as a statute creating 
a status of legitimacy between the illegitimate child and its father 
for all purposes, it would seem that the father should be domiciled 
in the state in order for it to operate for purposes beneficial 
to the child. The latter construction appears to be the proper one. 
The court in the principal case does not hesitate to read into the 
statute the wording of section 230, i. e. that it is a legitimation 
"for all purposes." In Blythe v. Ayres,* the court declared that 
section 215, conjoined with the principles of international law, 
would have changed the bastardy of the plaintiff in the world at 
large. Besides, the position of section 215 in the Code under the 
division "Persons," under the subdivision "Personal Relations," 
under the title "Parent and Child" indicates that this statute is to 
be considered merely as a statute fixing status. 

F. H, M. 

Corporation : Stockholders' Liability for Torts. — Does 
section 322 of the Civil Code comprehend a stockholders' liability 

*Munro v. Saunders (1832), 6 Bligh N. S. 468, 5 Eng. Rep. R. 665; 
Eddie V. Eddie (1899), 8 N. D. 376, 79 N. W. 856, 73 Am. St. R. 765. 

» Scott V. Key (1856), 11 La. Ann. 232; Miller v. Miller (1883), 91 
N. Y. 315, 43 Am. R. 669; Bates v. Virolet (1898), 33 App. Div. 436, 53 
N. Y. Supp. 893. 

«Ross V. Ross (1880), 129 Mass. 243, Z7 Am. R. 321; Shick v. Howe 
(1908), 137 Iowa, 249, 114 N. W. 916, 14 L. R. A. (N. S.) 980; Minor, 
Conflict of Laws (1901), § 68. 

7 1 Wharton, Conflict of Laws (3d ed.), p. 556. See note in 65 L. R. 
A. 182. 

8 Estate of Magee (1883), 63 Gal. 414; In re Loyd's Estate (1915), 
170 Cal. 85, 148 Pac. 522. 

* Supra, n. 3. 



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COMMENT ON RECENT CASES 249 

for the torts of a corporation? In Lininger v. Botsford^ it was 
decided that this liability extends to the payment of damages for 
personal injuries occasioned by the negligence of the corporation. 

The court declared that although the preponderance of author- 
ity may hold that liabilities ex delicto are not created by the imposi- 
tion of a stockholders' liability for "debts" of the corporation, our 
statute^ provides a liability for the "debts and liabilities contracted 
or incurred" by the corporation, which includes involuntary 
obligations imposed upon corporations for negligent or tortious 
acts. The court further declared that this statute was remedial 
in character, and should receive a liberal construction, one which 
will include within its scope as well a demand for damages for a 
tort as a claim for a debt arising upon contract. 

It is as competent for the legislature to impose a liability on 
stockholders for the torts of corporations as it is for it to impose 
a liability for contracts.* The right to carry on business on a 
corporate basis is derived from the authority of the state and is 
subject to the terms prescribed by the incorporation laws of the 
state.* Whether a statute imposes a stockholders' liability for the 
torts of a corporation or not, is a question of legislative intent. In 
construing an early Massachusetts statute providing a stockholders' 
liability for corporate debts, Judge Story took the word "debt" 
in its broadest sense, as embracing any just demands, whether aris- 
ing out of contract or tort." Though it is clear that this term, 
especially when used in a constitutional provision, is not used in 
the technical sense so as to be limited to such demands as will 
sustain a common law action of debt,® yet it seems that the term 
may not be subject to the broad construction given it by Judge 
Story, unless the phraseology of the statute would warrant it.^ 

In order to ascertain the legislative intent, the object of the 
statute should be taken into consideration, i. e., whether the 
statute is remedial or penal in character.® A statute creating a 
general liability, not dependent on special circumstances, may 



1 (Dec. 26, 1916), 24 Cal. App. Dec. 1. 

2Cal. Const, Art. 12, § 3; Cal. Code, § 322. 

8 Rider v. Fritchey (1892), 49 Ohio Civ. 285, 30 N. E. 692, 15 L. R. A. 
513. See note in 3 Am. St. R. 844. 

*San Francisco v. Liverpool etc. Ins. Co. (1887), 74 Cal. 113, 15 Pac 
380, 5 Am. St R. 425; 1 Qark and Marshall, Private Corporations (1901), 
§ 37. 

•Carver v. Braintree Mfg. Co. (1843), Fed. Cas. No. 2485, 2 Story, 
432. 

«Mill Dam Foundry v. Hovey (1839), 21 Pick. 417; Child v. Boston 
& F. Iron Works (1884), 137 Mass. 516, 50 Am. R. 328. See also 4 Cali- 
fornia Law Review, 331. 

» Avery & Sons v. McQure (1909), 94 Miss. 172, 47 S. 901, 22 L. R. A. 
(N. S.) 256; 4 Thompson, Corporations (2d ed.), § 4842. 

8 Chase v. Curtis (1884), 113 U. S. 452, 28 L. Ed. 1038, 5 Sup. Ct. Rep. 
554; Henley v. Meyers (1907), 76 Kan. 723, 93 Pac. 168, 17 L. R. A. 
(N. S.) 779. 



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250 CALIFORNIA LAW REVIEW 

reasonably admit of a more liberal construction than a law which 
seems to recognize a principle of individual irresponsibility, subject 
to a very limited exception, and is intended to hold out such re- 
sponsibility only as a penalty for the failure on the part of the 
corporate managers to perform certain acts directed in the law, 
and supposed to furnish some advantage to the public.® The con- 
clusion to be drawn from the adjudicated cases is that where the 
term "debt"^® is used, especially in penal statutes, it should be 
construed to apply only to claims arising out of contract ; but where 
the terms "dues,"" "demand,"" "claims,"" "all acts,"" "liabili- 
ties"^' and similar expressions are used, especially in remedial 
statutes, they should be construed to include all liabilities of the 
corporation, whether ex contractu or ex delicto. As the statute 
in the present case has for its object the imposition of a general 
stockholders' liability for all the debts and liabilities of the corpora- 
tion, it would seem that it should be construed to include a 
liability for the torts of the corporation. 

F. H, M. 

Constitutional Law: Farm Loan Act Held Valid. — 
Within recent years the conviction has been growing that farmers, 
requiring money to carry on and extend their operations, are 
subjected to disadvantages which, not altogether necessary and not 
suffered by other classes, seriously hamper, if they do not imperil, 
the progress and welfare of agriculture. That this condition exists 
is shown by government investigations and reports and the rectifi- 
cation of this condition has engaged and is engaging the atten- 
tion of Congress^ and of several of the states.^ 

The case of Hill v. Rae,^ in which a Farm Loan Act providing 
State credit facilities for farmers, was held valid, has therefore 
more than passing interest. The act was assailed as class legisla- 
tion, denying equal protection of the law and contrary to the 14th 
amendment of the United States Constitution. 

Under the police power a state may pass laws for the general 

» Cable V. McCune (1858), 26 Mo. 371, 72 Am. Dec. 214. 

10 Chase v. Curtis, supra, n. 8; Savage v. Shaw (1907), 195 Mass. 571, 
81 N. E. 303» 122 Am.. St. R. 272; Heacock v. Sherman (1835), 14 Wend. 
58. See note in 22 L. R. A. (N. S.) 256. 

*i Rider v. Fritchey, supra, n. 3; Flenniken v. Marshall (1895), 43 
S. C. 80, 20 S. E. 78a 

12 Heacock v. Sherman, supra, n. 10. 

^*4 Thompson, Corporations (2d ed.), 1267. 

"Kelly V. Min. Co. (1898), 21 Mont. 291, 53 Pac. 959, 42 L.R.A.621. 

"Buttner v. Adams (1916), 236 Fed. 105. See M^Uer & Lux v. Kern 
Co. Land Co. (1901), 134 Cal. 586, 66 Pac 856. 

1 Federal Farm Loan Act of July 17, 1916. 

^ Report of California State Commission on Colonization and Rural 
Credits (Nov. 29, 1916); Senate Bill, No. 584. 
« (Mont., 1916), 158 Pac. 826. 



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COMMENT ON RECENT CASES 251 

comfort, health and prosperity of its people,* and when there are 
reasonable economic or political or social reasons for doing so, 
certain occupations or industries, or even classes of persons may 
be selected out for special regulation or for the enjoyment of 
special privileges.' Classification, however, must be based on some 
reasonable ground, some difference bearing a reasonable and 
just relation to the act in respect to which the classification is 
proposed.* 

In Clark v. Kansas City^ a statute was upheld which provided 
that cities could annex adjoining lands unless such lands were used 
for agricultural purposes. The court justified the principle dis- 
tinguishing between agricultural lands and lands used for other 
purposes, saying: "That principle leaves to the state the adapta- 
tion of its laws to its conditions. The growth of cities is inevitable, 
and in providing for their expansion it may be the judgment of an 
agricultural state that they should find a limit in the lands actually 
used for agriculture." Likewise, in American Sugar Refining Co. 
V. Louisiana^ where a state statute imposed a license tax on per- 
sons engaged in refining sugar, but exempted farmers grinding 
their own sugar the court sustained the law, saying: "The dis- 
crimination is obviously intended as an encouragement to agri- 
culture, and does not deny to persons and corporations engaged 
in a general refining business the equal protection of the laws." 

It is true that in Connolly v. Union Sewer Pipe Co.® a dis- 
crimination made by a state anti-trust law exempting from its 
operations agricultural products, was held a denial of the equal 
protection of the laws. However, as previously pointed out, 
classification must rest upon some difference bearing a reasonable 
and just relation to the act in respect to which the classification 
is proposed.^® The idea underlying the decision is that if, in the 
large design to protect the public from extortion, combinations 
to control prices should be forbidden, all should be, because, with 
reference to that design, no legitimate distinction could be made 
among them. On this ground, the case is distinguishable. 

* Chicago, B. & Q. R. R. V. Drainage Commission (1906), 200 U. S. 
561, 50 L. Ed. 596, 26 Sup. Ct. Rep. 341; Lawton v. Steele (1894), 152 
U. S. 133, 38 L. Ed. 385. 14 Sup. Ct. Rep. 499; Commonwealth v. Alger 
(1851), 7 Cush. 53; Cooley, Constitutional Limitations, p. 831 ; Watson on the 
Constitution, p. 604; Willoughby on the Constitution, p. 1231. 

* Missouri Pacific R. Co. v. Mackey (1888). 127 U. S. 205, 32 L. Ed. 
107. 8 Sup. Ct. Rep. 1161. In re Lockwood (1894), 154 U. S. 116, 38 L. 
Ed. 929, 14 Sup. Ct. Rep. 1082; St. Louis v. Matthews (1897), 165 U. S. 1, 
41 L. Ed. 611, 17 Sup. Ct. Rep. 243; Willoughby on the Constitution, p. 886. 

•Gulf. C. & F. R. Co. V. Ellis (1897), 165 U. S. 150, 41 L. Ed. 666. 17 
Sup. Ct. Rep, 255; Rippey v. Texas (1904), 193 U. S. 504, 48 L. Ed. 767, 24 
Sup. Ct. Rep. 516. 

7 (1900), 176 y. S. 114, 44 L. Ed. 392, 20 Sup. Ct. Rep. 284; Cooley, 
Constitutional Limitations, p. 15. 

8 (1900), 179 U. S. 89. 45 L. Ed. 102. 21 Sup. Ct. Rep. 43. 

» (1902). 184 U. S. 540, 46 L. Ed. 679, 22 Sup. Ct. Rep. 431. 
!• Supra, n. 6. 



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252 CALIFORNIA LAW REVIEW 

Mr. Justice Holmes has pointed out that "We must be cautious 
about pressing the broad words of the Fourteenth Amendment to a 
drily logical extreme. Many laws which it would be vain to ask the 
court to overthrow could be shown, easily enough, to transgress a 
scholastic interpretation of one or another of the great guarantees 
in the Bill of Rights."^^ Similarly, Mr. Justice Field, in speaking 
of the Fourteenth Amendment, says: "Neither the amendment, 
broad and comprehensive as it is, nor any other amendment, was 
designed to interfere with the power of the state, sometimes 
called its police power, to prescribe regulations to promote the 
health, peace, morals, education, and good order of the people, and 
to legislate so as to increase the industries of the state, develop 
its resources, and add to its wealth and prosperity."^* 

T, G. C. 

Constitutional Law: Personal Service of Process. — The 
State of New Jersey has set a fashion in automobile legislation 
for which we may venture to predict a considerable vogue. She 
requires any non-resident automobilist entering New Jersey to 
constitute the secretary of state his attorney upon whom process 
may be served in any suit brought in consequence of damage done 
in the state, notice being then mailed to whatever address he has 
left for that purpose. Hitherto, the motorist has certainly been 
within the rule that in a personal action due process of law de- 
mands that the defendant either voluntarily appear or be personally 
served with process within the jurisdiction.^ It is settled, however, 
that foreign corporations may be required to submit to a substituted 
service of process, upon the ground that their admission into a 
state is a matter of favor, to which the state may attach whatever 
conditions it likes.* Such justification is not present in the case 
of an individual or a partnership, for these are entitled to enter 
a state to transact business as a matter of right, so that similar 
statutes attempting to regulate them have been held unconstitu- 
tional in state and lower Federal courts,** as a denial of due process 
of law and of the privileges and immunities of citizenship in the 

"Noble State Bank v. Haskell (1911), 219 U. S. 104, 55 L. Ed. 112, 31 
Sup. Ct. Rep. 186, 32 L. R. A. (N. S.) 1062. 

i^Barbier v. Connolly (1885), 113 U. S. 27, 28 L. Ed. 923, 5 Sup. Ct 
Rep. 357. 

iPennoyer v. Neff (1878), 95 U. S. 714, 24 L. Ed. 565; Hart v. Sansom 
(1884), 110 U. S. 151, 28 L. Ed. 101, 3 Sup. Ct. Rep. 586; Dull v. Black- 
man (1898), 169 U. S. 243, 42 L. Ed. 733, 18 Sup. Ct. Rep. 333. 

2Cal. Civ. Code, § 405; Waters Pierce Oil Co. v. Texas (1900), 177 
U. S. 28, 44 L. Ed. 657, 20 Sup. Ct. Rep. 518. 

8 Brooks V. Dunn (1892), 51 Fed. 138; Moredock v. Kirby (1902), 118 
Fed. 180; Caldwell v. Armour (1899), 1 Pen. (Del.) 545, 43 Atl. 517; 
Flexner v. Farson (1915), 268 111. 435, 109 N. E. 327; Cabanne v. GraflF 
(1902), 87 Minn. 510, 92 N.W. 461. 59 L. R. A. 735; note in 44 Am. Dec 
570; contra Guenther v. American Steel Hoop Co. (1903), 116 Ky. 580, 76 
S. W. 419. See Cal. Civ. Code, § 2472. 



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COMMENT ON RECENT CASES 253 

several states. There are intimations to the same effect in decisions 
of the United States Supreme Court.* But in Pennoyer v. Neff,* 
that court said that it did not "mean to assert that a State may not 
require a non-resident entering into a partnership within its limits, 
or making contracts enforceable there, to appoint an agent ... in 
the state to receive service of process . . . and provide upon 
his failure to make such appointment . . . that service be made 
upon a public officer designated for that purpose." 

Since the automobilist is likewise entitled to enter the state 
as a matter of right, the New Jersey statute would seem to call 
for some discussion of this apparently unsettled point; but in 
Kane v. New Jersey,^ the Court, speaking through Mr. Justice 
Brandeis, was content to uphold the enactment upon the ground 
that "the speed of the automobile and the habits of men" rendered 
it reasonable in the interest of public safety, and that non-resi- 
dents were not discriminated against but on the contrary were put 
on an equality with residents. If this, then, be a measure con- 
ferring equality upon the non-resident automobilist, a similar 
enactment respecting any non-resident entering the state for any 
purpose, or never entering it at all, must also be a measure pro- 
motive of equality. For so far as inequality goes all non-residents 
are clearly in the same situation. Or if we are to stress the 
imponderable contribution of such a measure to the public safety, 
a similar requirement from all transients would be undeniably 
productive of the same effect. It is axiomatic that danger 
emanates from the least suspected sources, and we may suppose 
that Pandora herself, to whom the responsibility for the existence 
of all of these perplexing problems may be directly traced, was a 
person of a sufficiently innocuous appearance. But what State 
would not wish to impose upon visits from her some such restrain- 
ing influence as the New Jersey statute is credited with contem- 
plating? In short, the considerations suggested by the court, if 
true, do not seem conclusive. Are the rather fragmentary remarks 
of the court to be taken as an endorsement and extension of what 
in Pennoyer v. Neff the court merely took pains not to deny? 

C. A. R, 

Criminal Law: Self Help: Retaliation. — In People v, 
Finali^ A hit B with a rock and ran inside a warehouse. B pur- 

*D'Arcy v. Ketchum (1850), 11 How. 165, 13 L. Ed. 648; Mason v. 
Eldred (1868). 6 Wall. 231, 18 L. Ed. 783; Hall v. Lanning (1875), 91 U. S. 
160, 23 L. Ed. 271 ; Sugg. v. Thornton (1889), 132 U. S. 524, 33 L. Ed. 447. 
10 Sup. Ct. Rep. 163. 

* Note 2, supra. 

« (Dec. 4, 1916), 242 U. S. 160, 37 Sup. Ct Rep. 30. Cf. Kane v. State 
(1911). 81 N. J. L. 594, 80 Ati. 453, Ann. C:as. 1912-0, 237; and Qeary v. 
Johnston (1909). 79 N. J. L. 49. 74 Atl. 538. 

1 (Sept 19, 1916). 23 C. A. D. 419, 160 Pac. 850. 



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254 CALIFORNIA LAW REVIEW 

sued A, but being unable to force his way inside, fired through the 
door and killed A. While in no jurisdiction would B have been 
obliged to retreat from A's non-felonious assault, this right to stand 
his ground did not justify him in pursuing A for the purpose of 
killing him. 

In the course of the opinion the court said, "Had the defendant 
overtaken the deceased in the heat of the moment and suitably 
punished him for this assault, he might not have been held blame- 
worthy." Is there a right to pursue one who has committed an as- 
sault and to inflict reasonable chastisement? The earliest view 
of criminal punishment was for each person to avenge, in whatever 
manner he thought proper, a wrong done him by another.* Retal- 
iation was the basis of the lex talionis, the "eye for an eye" of the 
Mosaic law.* Even in this, its crudest form, it may have found 
some recognition in the English law.* The I-eges Henrici state 
that if A fell from a tree and killed B, B's relatives could climb 
a tree and fall on A,* and a modem parallel has been cited from 
the custom^ of Abyssinia.* In modem law the claim to the right 
to retaliate is usually denied.^ One case, however, recognised such 
a right to a limited extent.® Retaliation, in the heat of the 
moment may, however, reduce a homicide from murder to man- 
slaughter.® The modem retaliation is retaliation by the state as 
a theory of punishment, yet that theory of punishment is being 
discarded,^*' and if abandoned as a theory of punishment by the 
state, should it still have any recognition as a means of self 
help? The suggestion of the court barkens back to the days of 
duelling, when honor was thought to be dearer than human life, 
but that institution has almost died out ; the current attitude toward 
it is expressed by a noted writer, who says,^^ "It is not an insti- 
tution of honor, but a horrible and barbarous custom, which a 



2 Cherry, The Growth of Criminal Law in Ancient Communities, p. 8. 

8 Leviticus, 24:20. 

* Pollock and Maitland, History of English Law (2d ed.), p. 471; 
cf . p. 489. 

« Leg. Hen. 88, § 9. 

«Parkyns, Life in Abyssinia (1868), p. 366, cited in 2 Pollock and 
Maitland, History of English Law (2d ed.), p. 471. 

TRegina v. Driscoll (1841), Car. & M. 212, 41 E. C L. 120; State v. 
Burton (1900), 2 Pen. (Del.) 472, 47 Atl. 619; State v. Brooks (1912), 
3 Boyce,203, 84 Atl. 225; State v. Black (1915), 86 N. J. Law. 520, 93 
Ati. 91. 

8 People V. Pearl (1889), 76 Mich. 207, 42 N. W. 1109, 4 L. R. A. 709. 
15 Am. St. Rep. 304. 

»Beasley v. State (1886), 64 Miss. 518, 8 So. 234; Franklin v. State 
(1892), 30 Tex. App. 628, 18 S. W. 468. 

^^Tarde, Penal Philosophy, 552, "If retaliation, as there can be no 
doubt, is a conception which has served its purpose, let us scorn it verb- 
ally, let us forget it in our laws and consequently either let us drive the 
scafiFoId from its last foothold, or let us cease to restrict the menace of it 
to murder and assassination." 

" Rousseau, in Encyc Britt. (11th ed.), Vol. 8. p. 541. 



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COMMENT ON RECENT CASES 255 

courageous man despises and a good man abhors." The court's 
suggestion is not even supported by Von Jhering, an outspoken 
advocate of self help, whose most radical statement is/* "The 
defense of one's concrete legal rights, when those rights have 
been attacked, is a duty not only to himself but also to society." 
It is to be noticed that he says, "legal rights," but a person has no 
legal right to pursue and punish a person after all danger to him- 
self is gone.^' One of the ends of the law is to prevent private 
war. Dean Pound says,^* "A condition in which self help and 
private war are the normal processes of society is the very an- 
tithesis of the legal order." The remark of the court that a person 
who has been assaulted may overtake the assailant in the heat of 
the moment and suitably chastise him, not only has little support 
either in authority or on principle, but would be a step back- 
ward in legal development. 

S, F. H, 

Evidence: Books of Account: Laying Foundation. — ^At 
a time when the social aspects of the law are being emphasized 
and developed, that which tends more closely to unite law and 
l^al procedure with practical common sense is particularly 
welcome. This is especially true of the rules for laying the foun- 
dation for the introduction in evidence of account books.^ While 
the business man has implicit faith in the correctness of his 
books and the commercial world as a whole relies upon them, 
they are not generally receivable in evidence until proved by a 
witness having personal knowledge of the facts recorded therein.* 
If the bookkeeper thus qualified is dead or absent from the juris- 
diction the books would nevertheless be received, because of the 
necessity of the situation.' 

In most cases, however, the entrant making up the books 
relies solely on the oral or written reports of others, having 
himself no personal knowledge of the transactions entered. These 
reports are hearsay.* Therefore, the original observers themselves 
must verify them,* unless possibly, such proof is excused by reason 

** Von Jhering, "Struggle for Law" (Lalor's translation, 2d ed.), p. 76. 

"Supra, n. 7. 

1* "Interest of Personality," 27 Harvard Law Review, 198. 

MO R. C. L. 1174. See also, 1 California Law Review, 377. 

*Wigmorc, Evidence, § 1530. 

•American Surety Co. v. Pauly (1896), 72 Fed. 470; Stanley v. Wilker- 
son (1897), 63 Ark. 556, 39 S. W. 1043; Meyer v. Brown (1902), 130 
Mich. 449. 

*Swan v. Thurman (1897), 112 Mich. 416, 70 N. W. 1023; San Fran- 
cisco Teaming Co. v. Gray (1909), 11 Cal. App. 314, 104 Pac 999; Chandler 
v. Robinett (1913), 21 C:al. App. 333. 130 Pac 314. 

« Kerns v. McKean (1888), 76 Cal. 87, 18 Pac. 122; People v. Mitchell 
(1892). 94 C:al. 550. 29 Pac. 1106; Butler v. Estrella Raisin Vineyard Co. 
(1899), 124 Cal. 239. 56 Pac. 1040; San Francisco Teaming Co. v. Gray, 
supra, n. 4; Chandler v. Robinett, supra, n. 4. See also, 52 L. R. A. 595, n. 



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256 CALIFORNIA LAW REVIEW 

of death, absence from the jurisdiction, insanity or the like,* in 
which case the bookkeeper's verification of the entries as a correct 
copy of the original observer's statement is probably sufficient/ 
But more often the practical inconvenience of bringing in all the 
salesmen, clerks, teamsters and others having personal knowledge 
is as great an obstacle to the business man as absolute unavailabil- 
ity, and should operate equally as excusing their non-appearance. 
Some courts have adopted such a rule dispensing with the testi- 
mony "of witnesses having personal knowledge of the transac- 
tions when it appears that the testimony of such witnesses, because 
of death, interest, incompetence, absence, inconvenience, or 
otherwise is unavailing."® 

In California the courts had not progressed so far. In the cases 
where the above rule might have been applied there was no show- 
ing of inconvenience or the like, so the results reached were 
proper* but the language used would seem to deny the rule in 
toto. The conclusion reached in Montgomery and Mullen Lumber 
Company v. Ocean Park Scenic Railway Company^^ by the District 
Court of Appeal is therefore all the more gratifying. In that 
case lumber salesmen, after filling an order in the yard, would 
come into the office and enter the transaction on the books in 
question in triplicate, of which the duplicate copy remained as a 
permanent record — the other two being sent out — and on which 
the office force made the extensions in dollars and cents. In 
proving the books, only the manager of the company was called. 
He testified that they were kept imder his direction and that he 
knew to his own knowledge that they were corrett charges. No 
salesmen were called or accounted for, but the books were ad- 
mitted over the objection of defendant that no foundation had 
been laid. 

The case is stronger on its facts than any yet considered, ior 
the manager was neither an original observer nor an entrant. In 
People V. Mitchell^^ and San Francisco Teaming Co. v. Grav^" 
the original observers were not called and the accounts would 
not be received on the testimony of the entrants alone. The prin- 
cipal case seems to change this rule and go even farther than the 
view contended for, that the original observer should be dispensed 

• That such is the general rule see cases cited supra, n. 3. In California 
there are no decisions, but there are dicta in accord. San Francisco 
Teaming Co. v. Gray, supra, n. 4. 

^Wigmore, Evidence, § 1530. 

8W. Va. Architects & Builders v. Stewart (1911), 68 W. Va. 506, 70 
S. E. 113, 36 L. R. A. (N. S.) 899; Mo. Electric Light & P. Co. v. Car- 
mody (1897), 72 Mo. App. 534; Chesapeake & O. Ry.*C:o. v. Stojanowski 
(1911), 191 Fed. 720. 

® People V. Mitchell, supra, n. 5 ; San Francisco Teaming Co. v. Gray» 
supra, n. 4. 

10 (Nov. 11, 1916), 23 Cal. App. Dec 716, 161 Pac. 1171. 

11 Supra, n. 5. 
1* Supra, n. 4. 



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COMMENT ON RECENT CASES 257 

with on a showing of unavailability, by not even requiring that 
such a showing be first made. But it is eminently proper where 
there are a number of salesmen, teamsters and clerks making 
reports and several bookkeepers entering them, that the man who 
is in charge of all these activities and who knows that the books 
are regularly and correctly kept should be competent to so testify 
and enable the books to be received as evidence, particularly if a 
showing of inconvenience is made. 

/. G. 

Mining Law: Extralateral Rights on Vein Possessing 
Characteristics of Anticlinal Fold or Roll. — An interesting 
question raised by the case of Jim Butler-Tonopah Mining Com- 
pany V. West End Consolidated Mining Company,^ is whether 
extralateral rights can be exercised in two opposite directions on 
a vein possessing the characteristics of an anticlinal fold or roll. 
That is, when the vein can be followed up on its dip to a crest 
or axis of the roll or fold and then turns over and dips down in 
an opposite direction, does this crest or axis of the roll constitute 
an apex? On this point there has been no positive adjudication. 
There are cases* holding that where there is a swell or wave or roll 
in a vein this does not constitute an apex. The vein in question 
was in the form of an anticlinal roll or fold. Heretofore, a terminal 
edge has been considered by the cases and authorities as an essen- 
tial element of a legal apex.^ One of the approved definitions says 
that a legal apex is "All that portion of a terminal edge of a vein 
from which the vein has extension downward in the direction of 
the dip."* The court in the Jim Butler-West End case decided 
that a terminal edge was not an essential element of a legal apex, 
saying that when the vein turns over and dips in an opposite 
direction, that the crest of the fold is the legal apex and that an 
extralateral right can be exercised in both directions on the oppo- 
site dipping limbs of the anticlinal vein. The decision is also 
noteworthy for the fact that this is the first time that the statute 
has been construed so as to award an extralateral right in two 
opposite directions. An examination of the mining laws of other 
countries where the extralateral right has been sanctioned in one 
form or another does not disclose any intimation that this right has 
ever been exercised on the same vein in two opposite directions. 

1 (July 3, 1916), 158 Pac. 876. 

MlUnois Silver M. Co. v. Raff (1893), 7 N. M. 336, 34 Pac. 544; Iron 
Silver Mining Co. v. Murphy (1880), 3 Fed. 368, 375-76; Stevens v. 
Williams (1879), Fed. Cas. No. 13,414. 

•Costigan on Mining Law, 139-40; Barringer & Adams, The Law of 
Mines and Mining, A 442; Duggon v. Davey (1886), 4 N. Dak. 110, 26 
N. W. 887; Alameda M. Co. v. Success M. Co. (Dec. 29, 1916), 161 
Pac 862. 

*Lindley on Mines, p. 687; definition approved in Stewart M. Co. v. 
Ontario M. Co. (1914), 237 U. S. 350, 35 Sup. Ct. Rep. 610, 614, 59 L. 
Ed. 989. 



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258 CALIFORNIA LAW REVIEW 

It is doubtful if the framers of the federal mining act had this 
situation in mind. It will be interesting to see whether the decision 
of the Supreme Court of Nevada will meet with the approval of 
the Supreme Court of the United States.* 

5. F. H. 

Mortgages: Bar of the Statute of Limitations as Ground 
FOR Quieting Title. — With the decision in Bulson v. Moffatf^ 
it becomes evident that a mortgagor in California cannot under 
any circumstances quiet his title against an outstanding outlawed 
mortgage without first tendering the amount of the mortgage debt. 
In this case the mortgagor was denied relief though the mortgage 
was not only unenforceable because barred by the statute of limi- 
tations but also because it was invalid and illegal, having been 
so declared in a foreclosure proceeding which had terminated un- 
successfully more than twenty years prior to the bringing of this 
action. 

The court based its decision in the main on the rule now firmly 
established in California that the statute of limitations gives only 
defensive rights, and cannot be relied upon for affirmative relief, 
except, perhaps, where it is invoked to prevent the exercise of a 
power of sale contained in an outlawed mortgage.* Thus the 
mortgagor even after the statutory time has elapsed cannot eject a 
mortgagee who has taken possession with his consent, or under 
color of law, while the mortgage was subsisting, without first 
tendering the amount of the mortgage debt.' Nor, as stated above, 
can he quiet title against an outstanding mortgage;* though it 
is to be noted that if in such action the mortgagee is so ill advised 
as to cross complain for a foreclosure he has by his own unsuc- 

» The case has gone to the U. S. Supreme Court on writ of error. 

1 (November 23. 1916), 52 Gal. Dec. 565, 161 Pac 259. 

« Goldwater v. Hibemia Sav. & Loan Soc. (1912), 19 Gal. App. 511, 127 
Pac 861. Contra, Mentzel v. Hinton (1903), 132 N. C. 660, 44 S. E. 385. 95 
Am. St. Rep. 647. and note, 648. See also 6 L. R. A. (N S.) 510. Such 
power is not of course barred in a trust deed. Grant v. Burr (1880), 54 
Gal. 298. 

«Frink v. Le Roy (1874), 49 Gal. 314; Spect v. Spect (1891). 88 Gal. 
437. 26 Pac 202, 13 L. R. A. 137. 22 Am. St Rep. 314: Hooper v. Young 
(1903), 140 Gal. 274. 74 Pac 140. 98 Am. St. Rep. 56; Bums v. Hiatt 
(1906). 149 Gal. 617. 87 Pac 196. 117 Am. St. Rep. 157. See Cameron v. 
Ah Quong (1908), 8 Gal. App. 310, 96 Pac. 1025. Similarly a pledgee cannot 
be deprived of his possession of the pledge without a payment of the debt 
even though the statute has run. Puckhaber v. Henry (1907), 152 Gal. 
419, 93 Pac 114. 125 Am. St. Rep. 75, overruling Mutual Life Ins. Co. v. 
Pacific Fruit Go. (1904), 142 Gal. 477, 76 Pac 67. 

* Booth V. Hoskins (1888). 75 Gal. 271, 17 Pac 225; De Gazara v. 
Orena (1889), 80 Gal. 132, 22 Pac 74; Hall v. Amott (1889), 80 Gal. 348. 
22 Pac 200; Brandt v. Thompson (1891). 91 Gal. 458. 27 Pac 763; Boyce 
V. Fisk (1895), 110 Gal. 107, 42 Pac 473. See Raggio v. Palmtag (1909), 155 
Gal. 797, 103 Pac 312. Sec also. 6 L. R. A. (N. S.) 516; L. R. A. 1916 
B 1220. 



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COMMENT ON RECENT CASES 259 

cessful act "practically caused the removal of any cloud that might 
exist on plaintiff's title by reason of the existence of such mort- 
gage."* 

The free transfer of property is undeniably hindered by the 
existence of these apparently outlawed mortgages, even though a 
third person who purchases after the statute has run may quiet 
title without a tender.® This is because of the fact that the statute 
may have been tolled by the absence of the mortgagor from the 
jurisdiction, or the lien of the mortgage may have been extended 
by a mere renewal of the note prior to the purchase, in which 
ease the purchaser will be subordinated to its lien.^ 

There is at present no way in which the mortgagor can establish 
by his own act that the mortgage is invalid or unenforceable. It 
might indeed have been argued that from the use of the word 
"extinguished" in section 291 1 of the Code of .Civil Procedure 
more must have been intended than that the statute should operate 
merely as a defense. Such a contention was favored in Berkin 
V. Healey,^ a Montana case, which arose under an identical code 
provision, where it was stated that the mortgagor would have the 
right to cancel an outstanding outlawed mortgage. It might be 
desirable in order to make for free alienability of property to give 
him a right to quiet his title against such a mortgage when no 
payments have been made on it for a certain stated time, and no 
other acts have been done recognizing it as a valid mortgage,* 
or at least to provide some machinery whereby it could be definitely 
adjudicated tiiat the mortgage had become barred.**^ 

M. W. 

Pledge: Waiver by Execution at Instance of Pledgee. — 
The authorities are divided as to whether a lienholder waives his 
lien by levying upon his security in a suit on the original debt. 
Much confusion has arisen from a failure to distinguish between 
a detention-lien, such as that of a common-carrier, in which 
continued possession is essential, and a pledge-lien, such as the 



•Marshutz v. Scltzor (1907), 5 Cal. App. 140, 89 Pac. 87a 

•Faxon v. All Persons (1914), 166 Cal. 707, 137 Pac 919; Muhs v. 
Hibemia Sav. & Loan Soc. (1914), 166 Cal. 760, 138 Pac. 352. 

^Newhall v. Hatch (1901), 134 Cal. 269, 66 Pac. 266, 55 L. R. A. 673. 
But no renewal after he has purchased can affect him. Lord v. Morris 
(1861). 18 Cal. 482; Wood v. Goodfellow (1872), 43 Cal. 185; Foster v. 
Butier (1913), 164 Cal. 623, 130 Pac. 6. 

« (June 3. 1916), 158 Pac. 1020. 

» Such is the rule by statute in Massachusetts. Mitchell v. Bickford 
(1906), 192 Mass. 244, 78 N. E. 453; McMahan v. McMahan (1910), 205 
Mass. 99, 91 N. E. 298. 

1® Such is the rule by statute in Kansas. "The act ... . authorizes 
an adjudication as to the status of the mortgage when the action is begun, 
and the detennination whether it is a live or dead security." Shepard v. 
(nbson (1912), 88 Kan. 305, 128 Pac 371. 



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26o CALIFORNIA LAW REVIEW 

pledge of collateral security, in which the creditor has an assign- 
able interest. 

The cases which consider that the holder of a detention-lien 
waives his right by levying on the subject of the lien^ rely on two 
early decisions, Jacobs v. Latour^ and Swett v. Brown. The 
latter has been declared by Judge Story to be a peculiarity of 
local Massachusetts jurisprudence,* and has been otherwise ad- 
versely criticized.* These cases proceed on the theory that the 
lienholder in order that the officer may make a levy must sur- 
render possession to the sheriff, thereby losing the lien. 

The opposing cases regard it as unjust to follow the technical 
strictness of the principle and hold that the sheriff is merely the 
agent of the lienholder.* The injustice of the technical view is 
apparent in situations in which the attachment or execution proves 
void. Here the creditor will obtain no remedy against his debtor 
if his lien be regarded as waived by the levy. 

Technically, in order to levy, the lienholder must surrender 
possession to the sheriff. In the case of a detention-lien, this 
might be considered as a waiver,® but it cannot be so considered 
in the case of a pledge-lien. Here the pledgee has an assignable 
interest in the security, not a mere non-transferable right, de- 
pendent upon continued possession.^. In Gault v. Wiens,^ however, 
the California Appellate Court, following an earlier California 
decision,® applied the strict detention-lien rule to a pledge case. 
The authorities cited^® do not support the holding. Wingard 

1 Jacobs V. Latour (1828), 5 Bing. 130, 130 Eng. Rep. R. 1010; Swett v. 
Brown (1827), 5 Pick. 178; Legg v. Willard (1835), 17 Pick. 140, 28 Am. 
Dec. 282; Citizens' Bank v. Dows (1886), 68 Iowa, 460, 27 N. W. 459; 
Lawrence v. McKenzie (1893), 88 Iowa, 432, 55 N. W. 505; (but see dicta 
in Stein v. McAuley (1910), 147 Iowa, 630, 125 N. W. 336 modifying 
former Iowa cases); Bank v. Neilsen (Wash., 1916), 159 Pac. 113; Potter 
V. Greenleaf (1899), 21 R. I. 483, 44 Atl. 718. 

2 Supra, n. 1. 

8 Story, Bailments, § 366. 

*Arendale v. Morgan (1857), 5 Sneed, 703; Lambert v. Niddass 
(1898), 45 W. Va. 527, 31 S. E. 951, 72 Am. St Rep. 828, 44 L. R. A. 561. 
See also Consignees' Box Co. v. Speer (1908), 5 Gsl. App. 156, 62 S. £. 
1000. 

« Lambert v. Nicklass, supra, n. 4; Wiggin v. Mankin (1909), 65 W. 
Va. 219, 63 S. E. 1091. 

•Compare 12 Harvard Law Review, 571, with Miller v. Hyde (1894), 
161 Mass. 472, 37 N. E. 760, where the court brushed aside similar technical 
arguments based on the selection of remedies (which proved in fact to be 
no remedies), and held that, in an action for conversion, title did not 
pass upon mere entry of judgment without satisfaction. 

T Donald v. Suckling (1866), L. R. 1 Q. B. 585; Halliday v. Holgate 
(1868), L. R. 3 Ex. 299; Williams v. Ashe (1896), 111 Cal. 180, 43 Pac 
595; Brittan v. Bank (1899), 124 Cal. 282, 57 Pac 84, 71 Am. St Rep. 5a 

8 (Nov. 6, 1916), 23 Cal. App. Dec 685, 161 Pac 996. 

»Latta V. Tutton (1898), 122 Cal. 279, 54 Pac 844, 68 Am. St Rep. 30. 

1® Wingard v. Banning (1870), 39 Cal. 543; Jacobs v. Latour, supra, n. 
1; Jones, Pledges (2d ed.), § 599. 



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COMMENT ON RECENT CASES 261 

V. Banning** is an attachment case under the Practice Act,** 
which did not allow attachments if a lien or pledge existed. The 
attachment in that case, after an affidavit that no security existed, 
was clearly inconsistent with the retention of the carrier's lien in 
question. Jacobs v. Latour*^ is also the case of a detention, not 
a pledge-lien. The authorities cited by Jones on Pledges as 
supporting a waiver by the creditor are in part detention-lien 
cases, which from their very nature cannot be taken as authority 
for pledge-lien cases, and, in part, cases of common-law mort- 
gages. As to the latter, it is clearly inconsistent from a technical 
viewpoint for the mortgagee, as owner, to attach the property as 
belonging to the mortgagor. In the case of lien mortgages, the 
majority of cases hold that the mortgagee does not waive his lien 
by levying on the mortgaged property,** and for the purpose of 
securing justice, the same rule should apply to common-law mort- 
gages. True, the title passes, but it passes only for the limited 
purpose of security, and, if the mortgagee can achieve the common 
intention of realizing upon his security by levying, he should be 
permitted to do so. 

Dicta in certain Iowa cases, quoted by Jones, seem to agree 
with the California decisions, but these have been limited by a 
later decision of the Iowa court to cases of detention-liens.** The 
earlier Iowa cases have been adversely criticized*® and have been 
followed but once,*^ and in this instance, the point was barely 
touched upon. There are several cases contra to the California 
holding.** 

S, M. A. 

Property : Alluvion : Right of Upland Owner to Accre- 
tions From the Ocean. — In the case of Strand Improvement 
Company v. City of Long Beach} the Supreme Court seems to 
have settled in favor of the upland owner the California law upon 
the interesting question whether additions by accretion to land 
abutting on the ocean belong to the upland owner or to the state. 

1* Supra, n. 10. 

« Cf. Gal. Code Civ. Proc., §§ 537-a 

1' Supra, n. 10. 

"Case Co. v. Rice (1913). 152 Wis. 8, 139 N. W. 445; Stein v. Me 
Aulcy, supra, n. 1; Madson v. Rutten (1907), 16 N. D. 281, 113 N. W. 872, 
13 L. R. A. (N. S.) 554; Bank v. Mottin (1891), 47 Kan. 455, 28 Pac. 200. 
This question cannot arise in California unless § 726 of the Code of Civil 
Procedure be waived. See Martin v. Becker (1915), 169 Cal. 301, 305, 146 
Pac. 665, 667 and 3 California Law Review, 427. 

*5 Stein v. McAuley limiting Bank v. Dows and Lawrence v. McKenzie, 
supra, n. 1. 

"Wiggin v. Mankin, supra, n. 5. 

i^aaflin v. BrcUfelder (1901), 69 Ark. 271, 62 S. W. 905. 

*• Jones v. Scott (1872), 10 Kan. 33; Arendale v. Morgan, supra, n. 4; 
Guenthcr v. Cary (1896), 17 Ky. L. Rep. 1262, 34 S. W. 232. See also 
Lincoln v. Lindc (1891), 27 Abb. N. C. 278, 16 N. Y. Supp. 106. 

1 (Dec 9. 1916), 52 Cal. Dec. 616, 161 Pac 975. 



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262 CALIFORNIA LAW REVIEW 

According to the civil law, the land which a river adds to a 
field by alluvion was acquired by the owner of the field.^ But 
since no man could own the seashore below the highest point 
reached by the waves in the winter storms,' the property in land 
gradually added by the sea did not vest in the upland owner.* 

The common law rule was otherwise, and land gained from the 
sea, by small and imperceptible degrees, either by alluvion, by the 
washing up of sand and earth so as in time to make terra firma, 
or by dereliction, as where the sea shrinks below the usual water 
marks, went to the owner of the land adjoining. '^ 

In California the law has been confused by section 1014 of 
the Civil Code which provides that in the case of rivers and 
streams where land forms from natural causes by imperceptible de- 
grees it belongs to the owner of the bank. This section, the 
United States Circuit Court of Appeals has regarded as covering 
the whole subject of accretion, and, applying the maxim, "expres- 
sio unius^' and section 4 of the Civil Code declaring that "The 
rule of the common law that statutes in derogation thereof are to 
be strictly construed, has no application to this code," has decided 
that it abrogates the common law of alluvion as applied to the 
seashore.® 

This reversion to the civil law rule is based upon a mistaken 
application of the rules of code construction. California by express 
enactment in 1850 adopted the common law, and it is a cardinal 
rule of interpretation that the common law continues, except as 
altered by the statute.^ The common law of alluvion as to the 
seashore is not touched upon by section 1014, and should there- 
fore continue. 

The common law is clearly the wiser and more just rule. Many 
reasons have been assigned for its existence — Blackstone explains 
it on the ground that such gains are too trifling for the law to 
regard, and on the further ground that as the owners of the sea- 
shore are often losers by the breaking in of the sea, or at charges 
to keep it out, this possible gain is a reciprocal compensation for 
such possible charge or loss.® Lord Hale rests his explanation 
on the basis of the maxim ''idem est non esse et non apparere," and 
this being the reason for the rule, it has been claimed that the 
right to alluvion ought only to be given when no definite bound- 



2 Institutes, 2, 1:20; Gaius, 2:70. 

8 Institutes, 2, 1, 5 ; Institutes, 2, 1, 3. 

* French Civil Code, § 538; Zeller v. Southern Yacht Qub (1882), 34 
La. Ann. 837. 

«2 Bl. Com. 262; Dana v. Jackson St. Wharf Co. (1866), 31 Cal. 118, 
89 Am. Dec. 164; Wright v. Seymour (1886), 69 Cal. 122, 10 Pac. 323. 

« Western Pac. Ry. Co. v. Southern Pac. Co. (1907), 151 Fed. 376. 

7 Sharon v. Sharon (1888), 75 Cal. 1, 13, 16 Pac. 345. 

8 2 Bl. Com. 262. 



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COMMENT ON RECENT CASES 263 

aries formerly existed.* It is, moreover, only fair and just that 
an owner should not be cut oflF from the shore to which he has 
formerly had approach. Whichever reason is the correct one, 
they all attest the value of the common law rule, and it is fortunate 
that the Supreme Court has seen fit in the principal case to main- 
tain our law in accordance with it. 

/. F. /?. 

Restraints on Alienation: Choses in Action. — Is a pro- 
vision in a contract that one of the parties thereto shall not 
"assign any of the moneys payable under the contract or his claim 
thereto" without the consent of the other party, valid? Cer- 
tainly this provision does not suspend "the absolute power of 
alienation" in violation of sections 715, 716, of the Civil Code,^ 
for it allows the debt to be assigned with the debtor's consent, 
and the absolute power of alienation is not suspended when there 
are persons in being who can by their united efforts convey an 
absolute interest in possession.^ 

But is this provision a condition restraining alienation, which 
is repugnant to the interest created, and therefore void under 
section 711 of the Civil Code.'** Portuguese- American Bank of 
San Francisco v. Welles^ involved a construction contract 
between the City of San Francisco and a contractor which con- 
tained such a provision. In violation of this provision the con- 
tractor assigned a payment which had become due to him under 
the contract. The court held that, in the absence of complaint by 
the city, the assignment was valid as between the assignee and 
a creditor of the contractor. 

That a provision against the assignment of a debt is a 
"condition restraining alienation" is clear; but is it "repugnant to 
the interest created?" It cannot be doubted that choses in action 
are within the general terms of section 711, for it is in that 
division of the Code which deals with property in general, and 
the Code recognizes the right of property in an obligation.* It 
may be urged, however, that section 711 is merely a re-enactment 
of the common law rules, that alienability is an essential attribute 
of certain interests in property, that to deprive such interests of 
the quality of alienability would be to create interests unknown 
to the common law, and that such interests cannot be created: 
that therefore the test of a condition's repugnancy to the interest 
created is the common law definition of such interest; and that 

•Attorney-General v. Chambers (1895), 4 DeG. & J. 55, 45 Eng. Rep. R. 
22; Hale, De Juris Maris, Chap. VI, II. 

1 Gal. Giv. Code, §§ 715, 716. 

2 Gal. Giv. Code. § 716; Toland v. Toland (1898), 123 Gal. 140, 55 Pac. 
681; Blakeman v. Miller (1902), 136 Gal. 138, 68 Pac. 587. 

• Gal. Giv. Code, § 711. 

* (Nov. 13. 1916), Z7 Sup. Gt Rep. 3. 
« Gal. Giv. Code, §§ 655, 1458. 



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264 CALIFORNIA LAW REVIEW 

it necessarily follows from these premises that a condition re- 
straining the alienation of a chose in action is not repugnant to 
the interest created, because assignability is not an essential 
attribute of a chose in action. Indeed, as a matter of legal history, 
assignability is a comparatively modem idea in connection with 
choses in action. But the operation of the rule enunciated in sec- 
tion 711 shows that whether a condition restraining alienation is 
repugnant to the interest created depends not so much upon 
common law definitions of the various interests in property as 
upon the dictates of public policy. For example, in genersd, if 
a man conveys his entire interest in property — whether it is is 
estate in fee simple or for life, a term of years, or an interest 
in personality — conditions imposed by him restraining its aliena- 
tion are void;* but if he Conveys a term for years restraining an 
interest in himself then a condition restraining alienation is good.^ 
The difference between these two cases may well be explained 
upon the basis, that, in the former the grantor can present no 
reason, upon which the law looks with favor, to justify his making 
the interest inalienable; while in the latter case it is of unques- 
tionable importance to the landlord that the tenant in possession 
be a person who will properly cate for the property. Similarly, 
where it is necessary to protect property conveyed to a married 
woman from her husband, conditions restraining alienation are 
held valid, even though attached to the conveyance of the grantor's 
entire interest.® 

But if we concede that section 711 establishes a rule of public 
policy against unnecessary restraints in alienation, then it should 
apply with equal force to all forms of property, whether tangible 
or intangible. And a distinction might properly be made be- 
tween the assignment and the creation of a chose in action, — 
a distinction similar to that which exists between the assignment 
and a lease or sub-lease of a term for years, — with the result that 
the transferor of an obligation against a third party would not 
be able to impose a condition against its alienation, while one 
who creates a debt against himself, as in the principal case, would 
be considered as having such an interest as would justify his 
restraining its alienation. 

/?. E. H. 

«De Peyster v. Michael (1852), 6 N. Y. 467; Potter v. Couch (1891), 
141 U. S. 296, 35 L. Ed. 721, 11 Sup. Ct. Rep. 1005; Brandon v. Robinson 
(1811), 18 Ves. Jun. 429, 34 Eng. Rep. R. 379; Metcalfe v. Metcalfe 
(1889), 43 Ch. Div. 633; Co. Litt., § 223-a. 

TDoe V. Watt (1828), 8 B. & C. 308, 108 Eng. Rep. R. 1057; Barry v. 
Stanton (1594), Cro. Eliz. 330, 78 Eng. Rep. R. 580; Doe v. Carter (1799), 
8 T. R. 60, 300, 101 Eng. Rep. R. 1400; Weatherall v. Geering (1806), 12 
Ves. Jur. 504, 33 Eng. Rep. R. 191. 

sBaggett V. Meux (1844), 1 Coll. 138, 63 Eng. Rep. R. 355; In re 
Currey (1886), 32 Ch. Div. 361; Gray, Restraints on the Alienation of 
Property, § 125. 



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COMMENT ON RECENT CASES 265 

Ways of Necessity: Partition. — While it is often said that 
there are two possible ways in which an easement may arise, by 
agreement of the parties, express or implied, and by act of law, 
in the last analysis all easements arise only in one way, from a 
grant, express or implied. 

A way of necessity, arising from a divisiom of land by an 
owner, is always founded upon an implied grant.^ The question 
arises whether a way of necessity is implied from a division of 
land by a partition decree under which one of the parcels is en- 
tirely enclosed by others. This is answered in the affirmative 
in California,* and while there is some authority contra,^ it 
would seem that the position of the California courts is right.* 
A grant of an easement may be implied from an act of law when 
the circumstances are such that the easement could be implied in 
an ordinary conveyance.* It has been suggested by the English 
courts" in construing an act of Parliament, "that the Act although 
proceeding from the legislature as paramount authority, and not 
directly from the proprietors of the soil, must be read as equiva- 
lent to a grant by the latter." The Supreme Court of California 
declared that there is no difference in effect between allotment by 
order of the court in a proceeding for partition and an allotment 
by deed from all the other tenants in common.^ 

It is clear that if the partition were voluntary there would 
arise the implied grant of a way of necessity. The partition 
decree should have the same result. "The effect of such partition 
is to convey the interest of the various co-tenants in the par- 
ticular parcels to the allottees of those parcels. Each is, therefore, 
a grantor and a grantee, and the one to whom an enclosed piece 
is set off has the same rights against the other that he would 
have if they joined in a voluntary conveyance to him."® The 
way of necessity arises from the division of the land arid it is 
immaterial whether the division takes place by agreement of the 
parties or by decree of the court.® 

Granted that the holder of the enclosed parcel has this right. 



iBullard v. Harrison (1815), 4 M. & S. 387, 105 Eng. Rep. R. 877; 
Carey v. Rae (1881), 58 Cal. 159. 

2 Blum V. Weston (1894), 102 Cal. 362, 36 Pac. 778, 41 Am. St. Rep. 
188; Accord, Ellis v. Bassett (1891), 128 Ind. 118, 27 N. E. 344. 

«Murphey v. Lincoln (1891), 63 Vt. 278, 22 Atl. 418; Gaynor v. Bauer 
(1903), 144 Ala. 448, 39 So. 749; Mayfair Property Co. v. Johnston, [1894] 
1 Ch. 508. 

* See 6 Columbia Law Review, 280. 

• Supra, n. 2. 

•The London & N. W. Ry. Co. v. Evans, [1893] 1 Ch. 16; Accord, 
Rangeley v. Midland Ry. Co. (1868), L. R. 3 Ch. App. 306. 

^ Supra, n. 2. 

•Mesmer v. Uharriet (Dec 22, 1916), 52 Cal. Dec. 722. 

•Cal. Code Civ. Proc, § 764, as amended in 1907 would seem to be 
merely declaratory of the then existing law. 



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266 CALIFORNIA LAW REVIEW 

is it not an equal and like right against each former co-tenant 
whose land prevents his access to a highway, and if so, who is to 
decide which particular parcel shall bear the burden? This 
question has apparently never been adjudicated. It was raised in 
Mesmer v. Uharriet,^^ and while not necessary to the decision of 
the case the court suggested a solution which seems reasonable 
and workable, viz: "Where the partition decree fails to provide 
roads, it may be that the location of ways of necessity should be 
fixed by a subsequent proceeding in which the owners of all the 
parcels which might be affected are brought in, and compensa- 
tion may be provided to be paid to the owner of the parcel 
burdened with the easement by those who are relieved." 

This would obviate the injustice which would result if the 
owner of one of the surrounding parcels should assume the 
burden of the easement to the advantage of the others, or if the 
holder of the enclosed parcel should be entitled to select a par- 
ticular neighbor and place the burden upon his land. 

F. H, W. 

Wills: Incorrect and Incomplete Date in Olographic 
Wills. — Probate of an olographic will was refused in Estate of 
Vance^ because the testator inadvertently neglected to complete 
the year of the date so that it read " . . . . this 22nd day of March 
in the year of our Lord one thousand" instead of "one thousand 
nine hundred and ten." The will was held invalid because 
it did not contain a date within the meaning of section 1277 of 
the California Civil Code, defining an olographic will to be "one 
that is entirely written, dated and signed by the hand of the 
testator himself." By this decision, in accordance with a pre- 
vious holding,* the California Supreme Court has followed the 
Louisiana Supreme Court* in establishing the distinction between 
an incorrect date, as where the year 1859 instead of 1889 is writ- 
ten,* which will not necessarily vitiate the olographic will, and an 
incomplete or deficient date, which will render the instrument 
invalid. The Louisiana court in making this distinction in the 
case of Heffner v. Heffner*^ referred to the fact that a similar 
distinction obtains among the French authorities in the inter- 



im Supra, n. 8. 

1 (Dec. 23, 1916), 53 Cal. Dec. 1. 

2 Estate of Carpenter (1916), 51 Cal. Dec. 335, 156 Pac. 464; of. Estate 
of Price (1910), 14 Cal. App. 462, 112 Pac. 482. 

sHeflFner v. Heffner (1896), 48 La. Ann. 1088, 20 So. 281; Succession 
of Swanson (1912), 131 La. 53, 58 So. 1030; same case (1913), 132 La. 606, 
61 So. 685. 

* Estate of Fay (1904), 145 Cal. 82, 78 Pac. 340, 104 Am. St. Rep. 17. 

* Supra, n. 3. 



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COMMENT ON RECENT CASES 267 

pretation of article 970** of the Code Napoleon, of which section 
1581 of the Louisiana Civil Code and section 1277 of the Cali- 
fornia Civil Code are almost literal translations. 

The distinction, however, made by the French authorities be- 
tween an incorrect and an incomplete date is not a distinction 
parallel to that pointed out by the Louisiana court and apparently 
established by the California cases. In France an olographic will 
is invalid if it does not contain the precise and certain indication of 
the day, month and year in which it was drawn,^ for "when the 
legislature demanded a date, it did not mean to be contented with 
some date, but it desired the exact date."® It does not follow, 
however, that the day, month and year must be actually expressed 
in accordance with the ordinary calendar denominations, as has 
been frequently stated by the California and Louisiana courts,* 
but rather that the precise day, month and year must be fixed 
by enunciations or declarations in the instrument itself which are 
perfectly equivalent to the ordinary calendar designations and 
which fix with absolute accuracy the date of the testament.*® 
Thus it is a sufficient date under the French law if the testator 
writes "Good Friday of the year 1756,"" or "Christmas 1898," 
or "the first of the year 1909" or "the day after the death of my 
wife."** In California, and probably in Louisiana and in France, 
common abbreviations pf the date, such as "4-14-07"" or "Nov. 
22, 97"** do not invalidate the will. On the other hand, in Cali- 
fornia and Louisiana at least,*' a partly printed and partly written 
date is not sufficient because it is not "entirely written, dated and 
signed by the hand of the testator," but if in connection with the 
date a printed superfluity or surplusage appears, such as the place 
where the will was drawn, the instrument is not thereby vitiated.*' 

The incorrectness of the date, by the French authorities, is in 

« **Le testament olographe ne sera point valable, s'il n'est 6cnt en cntier, 
dat6 at sign6 de la main du testateur: il n'est assujetti a aucune autre 
forme." 

^Aubry & Rau, Cours de Droit Francais (4th ed.), vol. 7, p. 103; 
Baudry-Lacantinerie, Precis de Droit Francais (11th ed.), vol. 3, §§ 1013, 
1014. 

8 Baudry-Lacantinerie, vol. 3, § 1014. 

•Estate of Carpenter (1916), 51 Cal. Dec. 335, 156 Pac. 464; Estate of 
Price (1910), 14 Cal. App. 462, 112 Pac. 482; Estate of Martin (1881), 58 
Cal. 530; Heffner v. Heffner (1896), 48 La. Ann. 1088, 20 So. 281; 
Fuentes v. Gaines (1873). 25 La. Ann. 85. 

loPothier (2d ed.), vol. 1, pp. 402, 403; Aubry & Rau, vol. 7, p. 103; 
Baudry-Lacantinerie, vol. 3, § 1013. 

" Pothier, vol. 1, pp. 402, 403. 

^* Baudry-Lacantinerie, vol. 3, § 1013. 

"Estate of Chevallier (1911), 159 Cal. 161, 113 Pac. 130. 

>* Estate of Lakemeyer (1901), 135 Cal. 28, 66 Pac. 961, 87 Am. St. 
Rep. 96. 

"Succession of Robertson (1897), 49 La. Ann. 868, 62 Am. St. Rep. 
672; Estate of Billings (1884), 64 Cal. 427, 1 Pac. 701. 

"Succession of Robertson (1897) 49 La. Ann. 868, 62 Am. St. 
Rep. 672. 



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268 CALIFORNIA LAW REVIEW 

general equivalent to the entire absence of the date.^^ On the 
one hand, however, after proof of the handwriting and in the ab- 
sence of fraud, undue influence or suspicious circumstances, the 
date appearing in the will is presumably the correct one and its 
alleged incorrectness can be shown only by "intrinsic" evidence, 
that is, by the aid of the instrument itself, as where the inscribed 
date is anterior to that stamped in the water-mark of the paper 
upon which the instrument is written, or where the inscribed 
date is posterior to the testator's death." On the other hand, 
the incorrectness of the date may in France be rectified if the 
precise and correct date can be accurately ascertained by the 
aid of the testament itself, providing the error was due simply 
to the inadvertence of the testator. If the act of falsely dating the 
will was an intentional one it cannot be rectified by any evidence.** 
And exactly the same considerations apply to an incomplete date 
or to one which is uncertain, as where the superimposition of a 
"9" over an "8" permits either the reading of "1887" or "1897."^^ 
The presumption that the inscribed date is the correct one is, of 
course, not applicable to an incomplete or an uncertain date, so 
that a date, incomplete or uncertain, will render an olographic 
will invalid unless it be completed or ascertained by intrinsic 
evidence, whereas an incorrect date, being presumably correct, 
aside from fraud, undue influence, or suspicious circumstances, 
will not invalidate the will unless its incorrectness can be dem- 
onstrated by the aid of the instrument itself and cannot be rectified 
by means of the same kind of evidence. And in all cases the 
incorrectness, incompleteness or uncertainty must be the result of 
simple inadvertence and not of intention.^* 

It is clear that the reasoning of the French authorities in these 
cases is fundamentally upon a different basis than the reasoning 
of the California and Louisiana courts. A comparison of the 
relative merits of the two lines of reasoning rests ultimately 
upon the question of public policy, rather than upon any logical 
grounds. It is submitted, however, that the California and Louis- 
iana cases marking the distinction between an incorrect and an 
incomplete date might be reconciled with the French cases upon 
the ground that extrinsic evidence is not admissible, oh the one 
hand, to prove the incorrectness of a complete date which is pre- 
sumably correct, and, on the other hand, to supply the missing 
components of an incomplete date. 

L. N, H. 



"Supj-a, n. 7. 

isAubry & Rau, vol. 7, pp. 103, 104, 109-113; Baudry-Lacantinerie, vol 
3, §§ 1014, 1020. 
i» Supra, n. 18. 
20 Supra, n. 18. 
«i Supra, n. 18. 



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Book Reviews 



A Manual of The Federal Trade Commission. By Richard 
S. Harvey and Ernest W. Bradford. John Byrne & Company, 715 
14th Street, N. W., Washington, D. C. 1916. pp. xxii, 457. $5.00. 

The far-reaching significance of the Federal Trade Commission 
Act has scarcely been appreciated, even by the publicist and the 
economist. Beyond all doubt this legislation marks a fundamental 
change in governmental policy — a change as abrupt as that ac- 
complished by the Act to Regulate Commerce in 1887. A single 
motive underlies both pieces of legislation. Each statute owes 
its enactment to the conviction that judicial remedies have not 
provided an adequate solvent for problems which arise in the 
particular field with embarrassing persistency. The principles 
of the law of carriers were sufficiently clear upon paper, but it 
was necessary to create a commission with novel powers before 
tney became genuinely operative. Similarly, the Sherman Anti- 
Trust Act, enforceable solely in the courts, is, by general con- 
sent, largely ineffective, despite the vitality infused into it through 
the campaigns of the United States Department of Justice during 
the twelve years just past. Congress has again found it necessary 
to resort to regulation through a special administrative tribunal. 
And the influence of the Act to Regulate Commerce upon the 
text of the Federal Trade Commission Act is striking and sig- 
nificant. 

The permanence of the Federal Trade Commission cannot be 
doubted, and not a few students of the situation are convii;iced 
that it is destined to assume in the field of trade a control no 
less potent than that held by the Interstate Commerce Com- 
mission over transportation. This may well be doubted, since 
the Interstate Commerce Commission has been invested with 
greater powers over common carriers than may constitutionally 
be asserted over non-public service operations. But there can 
be no question that a vast new field of legal-economic practice 
has been opened. 

We are indebted to the authors and compilers of A Manual 
of The Federal Trade Commission for the first working tools 
of the new practice. Slightly more than one-half of this volume 
is devoted to a treatise on the law and a discussion of the func- 
tions of the Federal Trade Commission. These pages do not 
afford a profound dissertation upon the law, nor would the 
authors make any pretense to that effect. They have properly 
realized that an authoritative exposition of the law cannot be 
attempted in advance of decisions construing the statute and de- 
termining the powers of the Commission. The review is, how- 
ever, intelligent and informative and cannot fail to be helpful. 



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270 CALIFORNIA LAW REVIEW 

The appendix, which occupies the remaining half of the volume, 
is an especially convenient collection of materials comprising, 
inter alia, the Rules of Practice of the Federal Trade Commis- 
sion, the text of the Federal Trade Commission Act, the Qayton 
Act, and related statutes, the report of the Senate committee 
leading to the passage of the statute, and memoranda of cases 
instituted by the United States under the anti-trust laws. The 
compilation is comprehensive and yet contains nothing which 
could be regarded as surplusage. The manual is certain to be 
of very practical assistance to the prpfession. 

A. P, M. 

The Evolution of the Civil Law. By Charles Sunmer 
Lobingier, Ph. D., LL. M. Published by the Author, 191 5. pp. 105. 

This little book consists of syllabi and material for thirty-three 
lectures on the history and system of the Roman Law. The vol- 
ume is the outgrowth of the work of the author as professional 
lecturer on Civil Law in the University of the Philippines. The 
lecture material gives the more important matter for each lec- 
ture, with specific references to standard authorities. The book 
should prove a valuable and suggestive aid to any one giving a 
course on the Roman Law. On the basis presented, it is quite 
competent for a qualified person to develop a series of lectures. 
It might serve better for class use than one of the customary 
text-books. 

The author has had large experience. Formerly Professor 
of Law in the University of Nebraska, Commissioner of the 
Nebraska Supreme Court, and Judge of the Court of First 
Instance in the Philippines, he is now Judge of the United States 
Court for China, and member of the Faculty of the Comparative 
Law School of China. He has done much writing on legal and 
sociological questions, his chief book being "The People's Law." 

W. C. /. 

Trusts, Pools and Corporations. Revised Edition. By Wm. 
Z. Ripley, Ph.D. Ginn & Company, 29 Beacon Street, Boston, 
Mass. 1916. pp. xxxiii, 872. $2.75. 

Professor Ripley's first volume under this title was published 
in 1905, but the developments of the past ten years, particularly on 
the legal side, have compelled the preparation of a revised edition. 
The name of the editor suffices to attest the merit of the work. 

This compilation is the result of an avowed attempt "to apply 
the case system, so successfully evolved in the Harvard Law 
School, to the study of economics." The trust problem lends itself 
readily to treatment by the case method. The subject is not too 
broad, and admits of a development extensive as well as intensive. 
Professor Ripley draws his material from all available sources, and, 
needless to remark, his selections are made advisedly. Scholarly 



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BOOK REVIEWS 271 

studies of famous pools and combinations such as the Michigan 
Salt Association, the Whiskey Trust, the Wire-Nail Association, 
the Addystone Pipe Company and the Asphalt Combination, by 
such authorities as Jenks, Edgerton and Tatnall, reports of the 
United States Bureau of Corporations covering several of the 
larger industrial combinations, and other papers of a similar 
nature, occupy the preliminary chapters and constitute what may 
be regarded as the essentially economic division. The chapters im- 
mediately following are devoted to the judicial construction of the 
Sherman Anti-Trust Act. Opinions in representative cases from 
the Knight Case (to-day graciously forgiven and overruled) to the 
International Harvester and National Cash Register Cases are 
reproduced substantially in full. Professor Ripley's clear per- 
spective is evidenced by his organization of these decisions. The 
chapters in which they are incorporated are entitled, (XVI) Early 
Supreme Court Decisions, 1890-1901; (XVII) Definitive Anti- 
Trust Law Interpretation, 1901-1911; (XVIII) The Rule of 
Reason Applied Concretely, 1911-1915. The appropriateness of 
the classification will be apparent to all who have had occasion to 
pursue the development of tfie law. The text of the Federal Trade 
Conmiission Act and the Clayton Law follows logically, and the 
concluding pages of the work are devoted, for purposes of com- 
parative analysis, to monopolies and combinations in Europe. 

Professor Ripley is peculiarly qualified to prepare a work of 
this character. While the compilation is designed primarily for the 
political economy class room, the lawyer cannot fail to derive inter- 
est and profit from its pages. 

A. P. M, 



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Books Received 



A Treatise on Federal Impeachments. By Alex Simpson, 
Jr. The Law Association of Philadelphia, Philadelphia, Pa. 1916. 
pp. 230. 

Bender's Federal Revenue Law. By the Publisher's Editorial 
Staff. Matthew, Bender & Co., Albany, N. Y. 191 7. pp. 438. $4.00. 

A Treatise on the Law of Telegraph and Telephone 
Companies. By S. Walter Jones. 2nd Ed. Vernon Law Book Co., 
Kansas City, Mo. 1916. pp. xxxi, 1065. $7.50. 

A Treatise on American and English Workmen's Com- 
pensation Laws. By Arthur B. Honnold. Vernon Law Book 
Co., Kansas City, Mo. 191 7. 2 vols. pp. x, 1905. $15.00. 



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VOLV MAY, 1917 Number 4 

Federal Incorporation of Railroads 

ONE of the most important public utility problems now 
before the American people is the proposal of the rail- 
roads that Congress enact legislation compelling each 
railroad to any extent engaged in interstate commerce to secure, 
in lieu of its present state charter, a charter from the Federal 
Government. 

As nearly every railroad in the United States is to some 
extent engaged in interstate commerce, this proposal would re- 
sult in the transmutation of practically every railroad corpora- 
tion in this country from a state corporation to a federal cor- 
poration. 

The proposal for federal incorporation of the railroads 
presents some very interesting questions. 

Is the withdrawal from the states of practically all their 
powers over railroads — the avowed purpose of the federal 
incorporation plan— desirable? 

What will be the effect of federal incorporation of the rail- 
roads on the powers new exercised by the states with respect 
to purely state commerce? 

Will the federal incorporation of the railroads enable the 
railroads to remove themselves from state jurisdiclion over 
purely state commerce, without amending the commerce clause 
of the Constitution? 

Is the particular plan of federal incorporation advocated by 
the railroads in the public interest? 

What would be the effect on railroad rates and on the com- 
pensation hereafter to be paid by the Federal Government for 
the railroad properties, if Congress should now enact legisla- 
tion in effect compelling all railroads to take out national char- 



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274 CALIFORNIA LAW REVIEW 

ters under a plan which perpetuates all outstanding railroad 
securities including all the water therein? 

These and many other interesting questions are involved in 
the plan of federal railroad incorporation which is being urged 
by the railroads before the Newlands Joint Committee of the 
Senate and of the House of Representatives. 

It is not my purpose in this paper to discuss the merits of 
the proposal of the railroads to take from the states practically 
all their powers even over purely state railroad business. This 
is a subject of very great importance which merits consideration 
in a paper devoted to that subject alone. It is my purpose to 
consider in this paper, as succinctly as possible, the other ques- 
tions just suggested. 

The Newlands Plan. 

For several years, Senator Newlands of Nevada has been 
urging the enactment by Congress of legislation providing for 
the federal incorporation of railroads. Such incorporation, how- 
ever, is to be only part of a comprehensive plan for the regula- 
tion of the relationship between the railroads and both federal 
and state governments, the railroads and their patrons, the 
railroads and their security holders, and the railroads and 
their employees. 

The plan of Senator Newlands provides that any railroad 
corporation may secure a federal charter, but only with the 
consent of the parent state; that the states shall retain their 
power to regulate the rates of purely state conmierce and their 
power to enact police r^^ations with reference to such com- 
merce; that the physical properties of the railroads shall con- 
tinue to be taxable by the state wherein such properties are 
located; and that the new federal railroad corporation shall issue, 
in exchange for the property of the state railroad corporation, 
securities not exceeding the fair value of the property to be 
transferred, as such value may be determined by the Interstate 
Commerce Conunission. 

The Newlands plan also provides for the establishment of 
an accident and insurance fund for the benefit of employees; 
for action by the Interstate Conmierce Commission as a board 
of conciliation between the railroads and their employees; for 
the limitation of dividends to seven per cent on the outstanding 



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FEDERAL RAILROAD INCORPORATION 27s 

capital stock; and for the application of net earnings in excess 
of such dividends to betterments, extra dividends, or future 
inadequacy of earnings, as directed by the Interstate Commerce 
G)nmiission. 

The Railroad Plan. 

The plan of federal railroad incorporation now being urged 
by the railroads before the Newlands Joint Committee, omits, 
in my opinion, most of the commendable features of the New- 
lands plan and apparently has in view solely the withdrawal of 
the railroads from the jurisdiction of the states and the perpetua- 
tion, by direct compulsion of the Federal Government, of all 
their outstanding securities, whether issued for value or not. 

While the railroads have not as yet presented the details 
of their plan, its broad outlines clearly appear in the testimony 
thus far presented by them to the Newlands Joint Committee. 

The railroads urge the enactment by Congress of legisla- 
tion providing, in effect, that after a day certain no railroad 
in the United States shall be permitted to continue to engage 
in interstate commerce, unless it has secured from the Federal 
Government a charter under a statute to be enacted by Con- 
gress; that such incorporation is to be compulsory, as dis- 
tinguished from elective; and that the consent of the state from 
which the railroad holds its charter shall not be necessary. 

The states are to be deprived of all their powers over 
railroads with reference to rates, service, safety, equipment and 
facilities, the issue of securities and every other matter afFect- 
mg purely state conmierce as well as interstate commerce, ex- 
cept that, as a matter of policy, the states are to be permitted 
"for the present" to retain their power to tax railroad property 
located within their borders and to exercise police powers over 
railroads in matters which are "not vital." 

The new federal railroad corporation is to acquire the prop- 
erty of the existing state corporation subject to all outstanding 
bonds and other indebtedness and is to issue its capital stock 
in an amount equivalent to the entire outstanding capital stock 
of the state corporation. In a word, all the outstanding se- 
curities of the existing state railroad corporation, entirely with- 
out r^^ard to their relationship to the fair value of the property 
or to the existing relationship between bond capital and share 



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2;6 CALIFORNIA LAW REVIEW 

capital, are to be perpetuated in the form of the existing in- 
debtedness and new capital stock is to be issued by the federal 
railroad corporation in an amount equivalent to the entire out- 
standing capital stock of the state railroad corporation without 
any regard whatsoever to its fair value, this to be done tmder 
compulsion of the Federal Government. 

Each existing state railroad corporation is to be converted 
into a federal railroad corporation, so that, except to the extent 
to which mergers or consolidations may later be authorized, there 
will be just as many federal railroad corporations as there are 
now state railroad corporations. 

Early Federal Railroad Corporations. 

In four cases, ranging between 1862 and 1871, the Federal 
Government heretofore incorporated federal railroad corpora- 
tions. In each of these instances, the railroad was incorporated 
by special act of Congress for the purpose of connecting the 
Middle West by rail with our Pacific Coast possessions and in 
each instance the Federal Government, by means of land grants 
and other considerations, gave generous assistance to the new 
railroad. 

The first federal railroad was the Union Pacific Railroad 
Company, which was incorporated by Act of Congress of July i, 
1862, for the purpose of constructing a railroad from the looth 
meridian east of Greenwich, west, to connect with Central 
Pacific Railway Company, a California corporation.^ 

The second federal railroad was the Northern Pacific Rail- 
road Company, which was incorporated by Act of Congress of 
July 2, 1864, for the purpose of constructing a line of railroad 
from Lake Superior to Puget Sound, in the State of Washing- 
ton, with a branch line to Portland, Oregon.* 

The third federal railroad was the Atlantic and Pacific Rail- 
road Company, which was incorporated by Act of Congress of 
July 27, 1866, for the purpose of constructing a line of railroad 
from Springfield, Missouri, to Albuquerque, New Mexico, and 
thence to the Colorado River and to the Pacific Ocean. In 
the same act, the Southern Pacific Railroad Company, a Cali- 



1 12 Stats, at L. 489. 
2 13 Stats, at L. 365. 



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FEDERAL RAILROAD INCORPORATION 277 

fomia corporation, was authorized to connect with the Atlantic 
and Pacific Railroad Company at the California state line.* 

The fourth federal railroad incorporated during the period 
hereinbefore referred to was the Texas and Pacific Railroad 
Company, which was incorporated by Act of Congress on March 
3, 1871, for the purpose of constructing a line of railroad from 
Marshall, Texas, to San Diego, California.* 

Legal Problems. 

The proposed federal incorporation of the railroads presents 
a number of very interesting legal problems. 

That the Federal Government bas the power, whenever deemed 
necessary in the exercise of a governmental function, to create 
a corporation has been unquestioned ever since the decision of 
the Supreme Court of the United States in the leading case of 
McCulloch V. Maryland.* The same doctrine was announced 
in Osbom v. United States Bank.' 

The power of the Federal Government to create a railroad 
corporation to act as its agent or instrumentality in the per- 
formance of a function of the Federal Government is equally 
clear.' The power of the Federal Congress to create a cor- 
poration for the purpose of constructing a bridge across nav- 
igable water between two states has likewise been upheld.* 

Many more legal problems in part as yet unsolved are in- 
volved in the plan of the railroads. Among the most important 
of these problems are the means to be used to transfer to the 
new federal corporation the title to the property of the existing 
state corporation, with due regard to the rights of the stock- 
holders of the state corporation, and the effect of federal rail- 
road incorporation on the power of the states to regulate purely 
state commerce. I shall consider herein only the latter question. 
The effect of the proposed federal incorporation of the railroads 
on the powers of the states will be considered with reference to 



» 14 Stats, at L. 292. 

*16 Stats, at L. 573. 

» (1819), 4 Wheat. 316, 4 L. Ed. 579. 

• (1824), 9 Wheat. 738, 6 L. Ed. 2(M. 

'California v. Central Pacific Rd. Co. (1887), 127 U. S. 1, Z2 L. Ed. 
150, 8 Sup. Ct Rep. 1073. 

•Luxton v. North River Bridge Co. (1894), 153 U. S. 525, 38 L. Ed. 
808, 14 Sup. Ct. Rep. 891. 



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278 CALIFORNIA LAW REVIEW 

various classes of state powers in the following order: rates, 
taxes, securities, service, safety and police regulations. 

Rate Power of States. 

The railroads frankly declare that it is their purpose to take 
from the states their entire power over railroad rates, specifically 
including their power over purely state rates. The railroads 
advocate the federal incorporation of the railroads principally 
for the purpose of accomplishing this end and contend that the 
federal incorporation of the railroads is a means adequate to 
accomplish their purpose. 

The reports of the Supreme Court of the United States are 
full of decisions holding that under the commerce clause of the 
Constitution, the power of the Federal Government to regulate 
commerce is limited to commerce "with foreign nations, and 
among the several states, and with the Indian tribes," and that 
the states have the right to regulate purely state commerce as 
long as such regulation is not confiscatory and does not dis- 
criminate against commerce subject to the jurisdiction of the 
Federal Government. 

The claim now urged by railroad lawyers that by reason of 
its control over the instrvunentalities of interstate commerce the 
Federal Government has complete control over each railroad 
to any extent engaged in interstate commerce, even as to rates 
for purely state transportation, finds greater comfort in the 
hopes of these lawyers than in the decisions of the Supreme 
Court of the United States. It is unquestionably the prevailing 
opinion among well informed constitutional lawyers that the 
railroads cannot prevail in their campaign to take from the 
states their power over purely state commerce unless they shall 
first have persuaded the people of the United States to amend 
the commerce clause of the Constitution so as to take from the 
states the powers which apparently have been reserved to them. 

However, a number of decisions of the Supreme Court of 
the United States, dealing specifically with railroads incorporated 
by the Federal Government, lend strong support, on an entirely 
different theory, to the plan of the railroads. These cases 
strongly intimate that if the Federal Government, in incorporating 
a federal railroad corporation, declares that such railroad shall 
be used for military purposes and shall be a post road and 



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FEDERAL RAILROAD INCORPORATION 279 

clearly expresses the intention that such railroad shall not be 
subject to regulation by any state, such railroad will be subject 
to the exclusive control of the Federal Government in all mat- 
ters, including purely state transportation. This conclusion is 
reached, apparently not under the commerce clause, but under 
the military power of the Federal Government and under its 
power "to establish post offices and post roads." 

In Reagan v. Mercantile Trust Company,* decided on May 26, 
1894, the Mercantile Trust G)mpany brought an action against 
the Railroad Commission of Texas and the Texas and Pacific 
Railway Company, to restrain the enforcement, as against the 
Texas and Pacific Railway Company, of the Railroad Com- 
mbsion Act of the State of Texas. The Mercantile Trust Com- 
pany was trustee under an issue of bonds of Texas and Pacific 
Railway Company. The Mercantile Trust Company and the 
Texas and Pacific Railway Company both earnestly contended 
that Texas and Pacific Railway Company, being a federal cor- 
poration, was not subject to the control of the State of Texas, 
even as to rates for transportation wholly within the state. Mr. 
Justice Brewer, in presenting the opinion of the Supreme Court 
of the United States, held that this contention was unsound for 
the reason that there was nothing in the language of the act 
incorporating the Texas and Pacific Railway Company to 
justify the claim that the Federal Government had shown an 
intention that this railroad should be removed from the juris- 
diction of the State of Texas in purely state affairs. Mr. Justice 
Brewer says:*® 

"Similarly we think it may be said that, conceding to 
Congress the power to remove the corporation in all its 
operations from the control of the State, there is in the act 
creating this company nothing which indicates an intent on 
the part of Congress to so remove it, and there is nothing 
in the enforcement by the State of reasonable rates for 
transportation wholly within the State which will disable 
the corporation from discharging all the duties and exer- 
cising all the powers conferred by Congress. By the act 
of incorporation Congress authorized the company to build 
its road through the State of Texas. It knew that, when 
constructed, a part of its business would be the carrying of 



• (1294), 154 U. S. 413, 38 L. Ed. 1028, 14 Sup. Ct. Rep. 1060. 
^^ Reagan v. Mercantile Trust Co., supra, n. 9, at p. 416. 



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28o CALIFORNIA LAW REVIEW 

persons and property from points within the state to other 
points also within the State, and that in doing so it would 
be engaged in a business, control of which is nowhere by 
the Federal Constitution given to Congress" (Italics mine). 

Continuing, Mr. Justice Brewer says: 

"It must have known that, in the nature of things, the 
control of that business would be exercised by the State, and 
if it deemed that the interests of the nation and the discharge 
of the duties required on behalf of the nation from this cor- 
poration demanded exemption in all things from state con- 
trol, it would unquestionably have expressed such intention 
in language whose meaning would be clear. Its silence in 
this respect is satisfactory assurance that, in so far as this 
corporation should engage in business wholly within the 
State, it intended that it should be subjected to the ordinary 
control exercised by the State over such business." (Italics 
mine). 

It will be observed that Mr. Justice Brewer was willing to 
concede, for the purpose of this decision, that Congress has 
the power to remove a federal railroad corporation in all its 
operations from the control of the state, but that he based his 
decision on the fact that the charter of the Texas and Pacific 
Railway Company did not show an intention on the part of 
the Federal Government to thus exempt the Texas and Pacific 
Railway Company from state control in state affairs. This 
position of the Supreme Court is all the more significant in 
view of the fact that the briefs of counsel for the Mercantile Trust 
Company and the Texas and Pacific Railway Company specifically 
drew the attention of the Supreme Court to the fact that the 
incorporation of the Texas and Pacific Railway Company could 
be sustained not merely under the commerce clause, which clause 
has always been construed to contain a limitation reserving to 
the states the power to regulate purely state conmierce, but also 
under two additional powers of the Federal Government, the one 
power being the military power and the other the power to 
etsablish post roads. Under the language of the Federal Con- 
stitution, neither of these two powers is subject to any limita- 
tion with reference to state lines. 

In Smyth v. Ames,** decided on March 7, 1898, certain 
stockholders of Union Pacific Railway Company brought an 

" (1898), 169 U. S. 466, 42 L. Ed. 819, 18 Sup. Ct. Rep. 418. 



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FEDERAL RAILROAD INCORPORATION 281 

action against the railway and certain public officials of the State 
of Nebraska to enjoin the enforcement as against the Union 
Pacific Railway Company of an act of the Legislature of 
Nebraska regulating railroads and fixing maximum freight rates.. 
It was urged by the stockholders of the railway company that 
Union Pacific Railway Company was a federal corporation and 
that under its charter the Federal Government had reserved 
to itself the exclusive control of rates, both interstate and purely 
state. Mr. Justice Harlan, in delivering the opinion of the 
Supreme Court of the United States, held that the language of 
the federal charter could not reasonably be construed so as 
to reserve to the Federal Government these exclusive powers. 
Mr. Justice Harlan refers with approval to the language herein- 
before quoted from Reagan v. Mercantile Trust Company and 
concludes (at page 522) as follows : 

"Until Congress, in the exercise either of the power 
specifically reserved by the eighteenth section of the act of 
1862 or its power under the general reservation made of 
authority to add to, alter, amend or repeal that act, pre- 
scribes rates to be charged by the railroad company, it re- 
mains with the States through which the road passes to fix 
rates for transportation beginning and ending within their 
respective limits." 
This language contains a clear intimation that the Federal 
Government has the power, in incorporating a federal railroad cor- 
poration, to reserve to itself complete authority over such cor- 
poration, even as to purely state commerce. The intention to 
reserve such power, however, must be clearly expressed in the 
act of incorporation. 

In the Minnesota Rate Case,** decided on Jimc 9, 1913, Mr. 
Justice Hughes refers as follows to the contention of the Texas 
and Pacific Railway Company in the Reagan case: 

"It was insisted that this company was 'not subject to 
the control of the State, even as to rates for transportation 
wholly within the State,' the argument being that it was 
not within the state power to limit the Federal franchise to 
collect tolls. But the court held that the act of Congress did 
not go to the extent asserted but left the company, as to its 
intrastate business, subject to state authority." 

Three times the Supreme Court of the United States, speak- 
" (1913), 230 U. S. 352, 425, 57 L. Ed. 1511, 33 Sup. Ct. Rep. 729. 



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282 CALIFORNIA LAW REVIEW 

ing successively through Justices Brewer, Harlan and Hughes, 
has thus clearly intimated that if the Federal Government in 
incorporating a federal railroad clearly expresses the intention 
that such railroad shall not be subject to state control, the states 
will have no power over the railroad, even as to purely state 
commerce. It may be urged that in none of these three cases was 
the point necessary to the decision and that it would be a more 
sound doctrine to limit the exclusive control of the Federal Gov- 
ernment under the military power and under the power to estab- 
lish post roads, to matters of a military and postal nature and to 
hold that with reference to other classes of commerce the limita- 
tions of the commerce clause must govern. But it may be sug- 
gested that this qualification was not made in the decision in any 
of the three cases hereinbefore cited. 

In view of these three decisions, I consider it to be entirely 
unsafe to support the proposition of federal incorporation of 
the railroads on the assumption that the power of the states over 
purely state commerce cannot be taken from the states, even 
under federal incorporation, without an amendment of the com- 
merce clause of the Federal Constitution. If the plan of federal 
incorporation of the railroads should be successful, the railroad 
lawyers will undoubtedly argue before the Supreme Court of the 
United States, in confident reliance on the three decisions herein- 
before cited and on language showing the intention of the Federal 
Government, to be inserted in the statute, that the railroads have 
been entirely removed from control by the states, even as to all 
purely state matters, with the sole exception of the taxing power 
and police powers in matters "not vital," it being the intention, 
at present, to so word the general statute as to reserve these two 
powers to the states. 

Taxing Power of States. 

As already indicated, the railroads are willing, as a matter 
of policy, to leave to the states, "for the present," their power to 
tax railroad property. 

That the railroads could thereafter, by simply amending the 
federal incorporation statute, take this power, also, from the states, 
would seem to be clear from the decisions of the Supreme Court 
of the United States. 



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FEDERAL RAILROAD INCORPORATION 283 

In Thompson v. Pacific Railroad,*' it was urged that the 
Union Pacific Railway Company's property in Kansas was exempt 
from the payment of taxes levied by the state of Kansas, not 
imder any specific language in the act of Congress incorporating 
this railroad, but "from the relations of the road to the general 
government." 

The Supreme Court of the United States, speaking through 
Chief Justice Chase, distinguishes between the instrumentalities 
employed by the government and the property of the agents em- 
ployed by the government, and holds that as long as Congress has 
not interposed to protect from state taxation the physical prop- 
erty of a federal railroad corporation, such property may con- 
tinue to be taxed by the state. However, the Chief Justice holds 
that Congress may "exempt, in its discretion, the agencies em- 
ployed in such services [referring to federal railroad corporations] 
from any state taxation which will really prevent or impede the 
performance of them." And (at page 590) the Chief Justice fur- 
ther holds that "in the absence of express legislation to that 
eflfect" federal railroad corporations continue, with reference to 
their physical property, to be subject to state taxation. 

In Railroad Company v. Peniston,** the Supreme Court of 
the United States held, by a divided court, that the public 
authorities of the State of Nebraska might levy taxes on the 
physical property of Union Pacific Railroad Company, a federal 
railroad corporation, but not on its operations in the state. Jus- 
tices Strong, QiflFord, Miller and Davis held that the state tax 
under consideration was valid because it was merely a tax on 
the tangible property of the railroad and not on its operations. 
Mr. Justice Swayne concurred solely on the ground that Con- 
gress had not granted to the Union Pacific Railroad Company 
exemption from state taxation, but added that this railroad cor- 
poration "is a national instrumentality of such character that 
Congress may interpose and protect it from state taxation when- 
ever that body shall deem it proper to do so." Justices Bradley 
and Field, dissenting, held that under its federal charter the Union 
Pacific Railroad Company is exempt from all state taxation. Mr. 
Justice Hunt also dissented. It seems entirely clear that if the 



" (1869), 9 Wall. 579, 19 L. Ed. 792. 
1* (1873), 18 Wall. 5, 21 L. Ed. 787. 



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284 CALIFORNIA LAW REVIEW 

Federal Act incorporating the Union Pacific Railroad Company 
had expressly exempted this railroad from state taxation, the 
State of Nebraska would have been deprived of the right to 
tax even the tangible property of Union Pacific Railroad Com- 
pany located within its borders. 

In Central Pacific Railroad Company v. California," the 
Supreme Court of the United States said : 

"It may be regarded as firmly settled that although cor- 
porations may be agents of the United States, their property 
is not the property of the United States, but the property 
of the agents, and that a State may tax the property of he 
agents, subject to the limitations pointed out in Railroad Com- 
pany v. Peniston." 

The Supreme Court then continued as follows: 

"Of course, if Congress should think it necessary for the 
protection of the United States to declare such property ex- 
empted, that would present a different question." 
From these authorities, the conclusion may fairly be deduced 
that if the Federal Government, in providing for the incorpora- 
tion of a federal railroad, should clearly express the intention 
that such railroad shall not be subject to state taxation, no state 
would thereafter have the power to tax such federal railroad 
corporation, not even its tangible property located within the 
borders of the state. 

Power of States Over Securities. 

That the Federal Government, under a plan of federal incor- 
poration of the railroads, could provide, by appropriate language, 
for exclusive control over the issue by such railroads of capital 
stock, bonds and other evidences of indebtedness, seems entirely 
clear. 

The Supreme Court of the United States has frequently held 
that whenever the Federal Government enacts legislation provid- 
ing for regulation in a particular field of interstate commerce, the 
states may not thereafter lawfully exert any authority in that 
particular field of interstate commerce.^* 



" (1896), 162 U. S. 91, 125, 40 L. Ed. 903, 16 Sup. Ct. Rep. 766. 

i« Northern Pacific Ry. Co. v. State of Washington (1912), 222 U. S. 
370, 56 L. Ed. 237, 32 Sup. Ct. Rep. 160; Southern Ry. Co. v. Railroad Com- 
mission of Indiana (1915), 236 U. S. 439, 59 L. Ed. 661, 35 Sup. Ct. Rep. 309. 



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FEDERAL RAILROAD INCORPORATION 285 

The matter would seem to be too apparent to necessitate fur- 
ther discussion. 

Power of States Over Service. 

At the present time the various states exercise important 
powers with reference to the service, equipment and facilities of 
railroads. These powers include matters such as the quality and 
adequacy of the service; the adequacy of equipment, both pas- 
senger and freight; the construction, heating, lighting and sani- 
tation of depot and station buildings; the number and stopping of 
trains; the construction of spur tracks; and the construction of 
physical connections between railroad tracks. 

Under the decisions hereinbefore referred to, the Federal 
Government, under a plan of federal incorporation of railroads 
could provide that these powers, even as to purely state com- 
merce, could be completely withdrawn from the states. 

Power of States Over Safety. 

The states likewise exercise important powers over the safety 
of railroad construction and operation, from the point of view 
both of the railroad employees and of the traveling public. These 
powers include such matters as the investigation and prevention 
of railroad accidents; the establishment of proper operating rules; 
the maintenance of proper clearances, both vertical and horizontal ; 
the installation of block or other signals and of interlocking de- 
vices; the condition and manning of equipment; and the safety 
of the construction and operation of railroad crossings. 

Under the decisions hereinbefore referred to, the use of ap- 
propriate language in the Federal Incorporation Act would pre- 
sumably withdraw from the states the exercise of all these powers 
over all railroads to any extent engaged in interstate commerce. 

Police Powers of States. 

The states at the present time exercise important police powers, 
applicable to railroads, with reference to health, safety and morals. 
Although some constitutional lawyers have expressed the opinion 
that the Federal Government cannot interfere with the exercise 
by the states of their so-called "police powers," this view is in 
conflict with the decisions of the Supreme Court of the United 
States. The law of the land, as expressed by these decisions, un- 



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286 CALIFORNIA LAW REVIEW 

doubtedly is that as to interstate commerce the Federal Govern- 
ment has the power to enact regulations which shall supersede 
the police powers of the states." 

A familiar case of the exercise of state police powers over 
railroads is to be found in the laws of many of the southern 
states providing for separate coaches for whites and blacks. Under 
the decisions hereinbefore cited, the Federal Incorporation Act, 
either as originally adopted or thereafter amended, could un- 
doubtedly provide that with reference to this matter as well as 
all other police matters the state should thereafter exercise no 
power whatsoever, in so far as any railroad to any extent engaged 
in interstate commerce is concerned. 

Effect of Railroad Plan. 

With reference to the effect of the railroad plan on the powers 
now exercised by the states, it may be said that if the doctrine 
annotmced in the Reagan case and subsequent cases should be 
applied by the Supreme Court of the United States, the Federal 
Government, by the use of appropriate language in the Federal 
Incorporation Act, could deprive the states of all powers of any 
character whatsoever over any railroad to any extent engaged 
in interstate conmierce. 

The plan as actually proposed by the railroads is to deprive 
the states, "at present," of all such powers, with the exception 
only of the power to tax and the power to enact "non-vital" police 
regulations. 

The effect of the railroad plan on the financial structures of 
the railroads themselves is a matter which requires the most 
serious consideration. The railroad plan provides, in effect, that 
the new federal railroad corporation shall take over the property 
of the existing state railroad corporation, subject to the entire out- 
standing indebtedness, and that the new federal railroad corpora- 
tion shall issue its capital stock to an amount equal to the entire 
outstanding capital stock of the state railroad corporation. What- 
ever water exists in the railroad stock now outstanding is to be 
perpetuated, through the act of the Federal Government, in the 

i^Hipolitc Egg Co. V. U. S. (1911), 220 U. S. 45, 55 L. Ed. J64, 31 Sup. 
Ct. Rep. 364; Hoke v. U. S. (1913), 227 U. S. 308, 57 L. Ed. 523, 33 Sup. 
Ct. Rep. 281 ; Sligh v. Kirkwood, (1915), 237 U. S. 52, 59 L. Ed. 835, 35 Sup. 
Ct. Rep. 501; Seven Cases of Eckman's Alterative v. U. S. (1916). 239 
U. S. 510. 60 L. Ed. 411, 36 Sup. Ct. Rep. 190. 



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FEDERAL RAILROAD INCORPORATION 287 

new capital stock which is to be issued by the new federal cor- 
porations. 

As hereinbefore pointed out, the Newlands plan provided 
that the property of the existing state railroad corporations should 
be transferred to the new federal railroad corporations on the 
basis of the issue by the new federal corporations of securities 
not in excess of the fair value of the property which is to be 
transferred. This would seem to be not merely a fair propo- 
sition, but also a very necessary step in order to establish sound 
railroad financial structures in lieu of many which are now un- 
sound. However, when Mr. Alfred P. Thom, who appears in 
behalf of the railroads before the Newlands Joint Committee, was 
asked by Senator Cummins whether the railroads would be willing 
to limit the issue of securities by the new federal corporations to 
the fair value of the property, Mr. Thom flatly refused to enter- 
tain such a proposition, stating that the issue of securities equiv- 
alent only to the fair value of the railroad properties "would 
result in the financial ruin of the world." (Transcript, p. 399). 

Mr. Thom suggested, in reply to the argument that it would 
be most inadvisable to have the Federal Government compel the 
issue by the new federal corporations of large amounts of stock 
in excess of the fair value of the property, that the new stock 
might be issued without par value and that in this way the diffi- 
culty might be overcome. However, as Senator Cummins pointed 
out, such a solution of the problem would "simply delude the 
country." One of the chief causes of the financial difficulties in 
which many of the railroads now find themselves is- that their 
outstanding securities are largely in excess of the fair value of 
their property. Additional funds for capital expenditures cannot 
be secured by these railroads from the sale of bonds for the 
reason that the amount of bonds already outstanding is equivalent 
to, or greater than, the fair value of the property, nor can such 
funds be secured from the sale of capital stock for the reason that 
there is little or no equity at present behind the existing capital 
stock and no possibility, imder just and reasonable rates, of 
earning substantial dividends to be paid on new capital stock in 
addition to capital stock which was issued by the railroads for 
little or no consideration. The issue of capital stock without 
par value in lieu of the capital stock now outstanding would not 
add a single dollar to the value of the property or increase by 



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288 CALIFORNIA LAW REVIEW 

a single dollar the amount of net earnings available for dividends 
on capital stock, or in any way improve the present financial 
structure of the railroads. Unless the investors of our country 
are ''deluded," as suggested by Senator Cummins, they will be 
very slow, as long as the financial structures of these railroads 
remain as they are, to purchase additional securities, either bonds 
or capital stock. These comments, of course, do not apply to 
railroads whose financial structures are sound. 

Furthermore, the plan suggested by the railroads may involve 
most serious consequences with reference both to future railroad 
rates and to the price which the Federal Government will ulti- 
mately pay for the property of the railroads. As already pointed 
out, the new capital stock is to be issued, in effect, under com- 
pulsion of the Federal Government. Will not the railroads here- 
after urge, under these circumstances, that the government is 
estopped from claiming that the property of the railroads is worth 
less than the amount of the securities the issue of which was thus 
compelled? Is this not one of the real reasons for the plan of 
federal incorporation proposed by the railroads? Is it not their 
desire to lay the foundation for hereafter urging increases in rates 
on the basis of the securities to be issued under compulsion of 
the Federal Government? And, furthermore, are they not at- 
tempting to lay the foundation for hereafter claiming a iiigh value, 
based on the issue of such securities, when the people of the 
United States finally purchase this property? In either event, 
this aspect of the railroad plan is worthy of the most careful con- 
sideration from the American people. 

In my opinion, entirely apart from other features of the plan, 
the railroad, proposal should never be adopted except on the basis 
of the limitation of the issue of the new securities to the fair 
value of the property and on the basis of a proper relationship 
between the various classes of securities. 

Federal Incorporation Unnecessary. 

The representatives of the railroads before the Newlands Com- 
mittee repeatedly admitted that they can accomplish by direct 
legislation, such as by the amendment of the Interstate Commerce 
Act, everything which they hope to accomplish by the indirect 
instrumentality of federal incorporation. This admission is sub- 
ject to the qualification that it may be possible, under a Federal 



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FEDERAL RAILROAD INCORPORATION 289 

Incorporation Act passed in the exercise of the military power 
and the power to establish post roads, to take from the states 
powers which could not be taken from them under the conmierce 
clause of the Constitution as it now reads. 

Referring specifically to the control of the issue of railroad 
securities, Mr. Thom has repeatedly admitted that exclusive federal 
control of such issues can just as effectively be established, as 
a matter of law, by the passage of the Raybum Bill or some 
other amendment to the Interstate Commerce Act, as by providing 
a plan of federal incorporation of the railroads. 

Then why do the railroads advocate the enactment of the 
indirect means of federal incorporation when they can just as 
readily accomplish their purpose by dealing directly and openly 
by amending the Interstate Commerce Act? Is it because they 
think that they can more readily accomplish their purpose by 
indirect means which are not clearly seen and understood than 
by direct action in the open? The only answer given by the 
railroads is that before bankers would purchase railroad securities 
issued under federal control thereof, established by amendment 
to the Interstate Commerce Act, they would insist on having 
the legality of such amendment established by a decision of the 
Supreme Court of the United States. The railroads contend, on 
the other hand, that if federal incorporation were effected, these 
same bankers would purchase railroad securities thereafter issued, 
without questioning the legality of the machinery provided by the 
Federal Government. 

These arguments of the railroads are, in my opinion, by no 
means persuasive. It would be a comparatively simple matter 
to take to the Supreme Court of the United States a test case 
raising the question as to whether the Federal Congress may, by 
direct amendment of the Interstate Commerce Act, provide for 
exclusive or any other regulation of the issue of railroad securities. 
Statutes involving important changes in matters affecting property 
interests as well as human rights, are constantly passed by the 
Federal Congress and in due course the Supreme Court of the 
United States passes thereon, adjudicating all questions of doubt. 
The most signal weakness in this position of the railroads is their 
assumption that no litigation would follow the adoption by the 
Federal Government of the railroad plan of compulsory incor- 
poration of all the railroads. If this plan is adopted, I predict 



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290 CALIFORNIA LAW REVIEW 

that there will follow thereon the greatest flood of railroad litiga- 
tion which the United States has ever known. 

The only reason urged by the railroads in favor of accom- 
plishing their purpose indirectly instead of directly is the desire 
of these bankers to have the indirect method adopted rather than 
the direct method. This reason, in my opinion, is entirely im- 
satisfactory from the public point of view. 

General Conclusions. 

Finally, I desire to suggest a few general conclusions on the 
subject of federal incorporation of the railroads. 

1. It cannot be said, as a general proposition, that federal 
incorporation of the railroads is necessarily inherently good or 
bad. For instance, a plan of federal incorporation of the rail- 
roads under which the amount of outstanding securities would 
be reduced to a reasonable amount, the financial structures of 
the railroads improved and their ability to secure the necessary 
additional funds enhanced, without at the same time taking away 
from the states their powers over essentially local matters would 
be regarded as a good plan by many public-spirited citizens who 
regard the present railroad plan as essentially bad. Hence it is 
necessary in passing judgment on a plan of federal incorporation 
of the railroads, to consider the details of the particular plan pre- 
sented and then to determine whether that plan, with its details, 
is or is not desirable. 

2. The plan of federal incorporation now presented by the 
railroads is, in my opinion, distinctly against the public interest. 
It is calculated to break down the entire machinery of public 
regulation without in any degree improving the unsound financial 
structures from which many of the railroads are suffering. Fur- 
thermore, it has inherent in it grave dangers to future rates and 
to the future price to be paid by the Federal Government for 
the properties of the railroads, as hereinbefore pointed out. 

3. The entire purpose of the railroad plan would seem to 
be to escape regulation by the states and to perpetuate the exist- 
ing railroad securities. Unless these purposes are commendable, 
the plan certainly should not be adopted. 

4. When the framework of a Federal Incorporation Act has 
once been provided, even though necessary qualifications and 
limitations arc at first contained therein, it will be a simple mat- 



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FEDERAL RAILROAD INCORPORATION 291 

tcr for a subsequent Congress to strike out the qualifications and 
limitations so that the railroad purpose will be completely ac- 
complished. 

5. No convincing reason has been shown why such legisla- 
tion as may now be desirable should not be enacted directly by 
amendment of the Interstate Commerce Act or other direct legis- 
lation instead of by the indirect, devious method proposed by the 
railroads. 

Max Thelen. 

San Francisco, California. 



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Is the Regulation of Railroad Crossings a 
Municipal Affair? 



IN THE case of City of Los Angeles v. Central Trust Co./ 
the Supreme Court of California recently held that the City of 
Los Angeles, by charter provisions, had the power to open 
streets across a railroad, and to regulate the manner in which 
the crossing should be maintained, guarded and protected by the 
railroad company and by the municipal authorities. They held 
that this was, under the constitution,* a municipal affair, and 
consequently paramount to general laws which would have oper- 
ated except for the charter provisions.' The controversy involved 
the question whether Section 43 of the Public Utilities Act of 
191 1* controlled in the matter of railroad crossings in the City of 
Los Angeles. This section provides that no crossings of any 
railroad by a street, or of any street by a railroad, shall be made 
without permission of the Railroad Conmiission, and that the 
Commission shall have exclusive power to prescribe the manner, 
place and grade of crossings. 

It seems to us that the Supreme Court was mistaken in the 
position it took and that the question is of so great importance, 
and so likely to arise again, that we venture to suggest the 
grounds of our view that the interpretation of the Court is 
erroneous. Inasmuch as the case under discussion may be up- 
held on other grounds, it is to be hoped that the court will, on 
proper occasion, set forth clearly and unmistakably its view 
whether the determination of the place and manner of railroad 
crossings is a municipal affair or a state affair. 

The Public Utilities Act was not passed until December 23, 
191 1, taking effect on March 23, 1912. There had been passed, 
however, on February 9, 191 1, the Railroad Commission Act, 

1 (Sept. 11, 1916), 52 Gal. Dec. 298, 159 Pac. 1169. 

2Cal. Const. Art. XI, §6. 

8 Law V. San Francisco (1904), 144 Gal. 384. 391, 11 Pac. 1014; Fritz 
V. San Francisco (1901), 132 Gal. 373, 377, 64 Pac. 566; Byrne v. Drain 
(1900), 127 Gal. 663, 667, 60 Pac. 433; Barber etc. Go. v. Gosta (1915). 
171 Gal. 138, 152 Pac. 296. 

*Gal. Stats. Spec. Sess. 1911, pp. 18, 40. 



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REGULATION OF RAILROAD CROSSINGS 293 

which, by Section 15,* gave the Commission the same power over 
railroad crossings as section 43 of the Public Utilities Act of 
December 23, 191 1. The Railroad Commission Act was ex- 
plicity ratified and confirmed by section 22 of article XII of 
the constitution as amended on October 10, 191 1. Section 23 of 
article XII of the constitution as amended on October 10, 191 1, 
contained a proviso saying that "this section shall not affect such 
powers of control over any public utility vested in any city and 
county or incorporated city or town," unless the municipality should 
vote to release its control to the Railroad Commission. Section 82 
of the Public Utilities Act of December 23, 191 1, followed the same 
wording, substituting "this act" for "this section."® As section 
23 of article XII was amended in November, 1914, the proviso 
reads: "this section shall not affect such powers of control over 
public utilities as relate to the making and enforcement of local, 
police, sanitary, and other regulations, other than the fixing of 
rates, vested in any city and coimty or incorporated city or town," 
tmless surrendered by the municipality. The charter of the City 
of Los Angeles, as amended on March 25, 191 1, gave to the 
city the following powers: "To establish, lay out, open .... or 
otherwise improve streets, lanes, alleys, boulevards, crossings, 
courts, and other highways and public places;" and also, "To 
regulate, subject to the provisions of the constitution of the State 
of California, the construction and operation of railroads, inter- 
urban railroads, street railways, or other means of transporta- 
tion, conduits, waterworks, and works or plants for the produc- 
tion, transmission or distribution of gas, electricity, heat, refrigera- 
tion or power, and the works or plants of any other public service 
utility."^ 

It is our opinion (i) that the regulation of railroads, that 
is to say, general, commercial railroads, is a state affair and 
not a municipal affair; (2) that whatever jurisdiction in the 
matter of railroads may belong to municipalities, jurisdiction 
over the conditions of railroad crossings at least had at the time 
of the institution of proceedings in the present case, been taken 
away by proper legislation and vested in the Railroad Commission ; 



» Cal. Stats. 1911. pp. 13, 18. 
•Gal. Stats. 1911. pp. 18. 62. 
»Cal. Stats. 1911. pp. 2061. 2063. 



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294 CALIFORNIA LAW REVIEW 

and (3) that, even failing the validity of these contentions, never- 
theless sections 22 and 23 of article XII of the constitution 
as amended in 191 1, gave the Railroad Commission complete and 
exclusive control over the conditions under which railroad cross- 
ings may be constructed. 

(i) To open, lay out, and improve streets within the city, 
is tmquestionably a municipal affair,® as here held by the court. 
And there is no doubt that Los Angeles had by its charter of 
1889 effectively claimed this power.* But it is essentially a 
different question whether the determination of the place and 
manner in which a street shall cross a commercial railroad track is 
or can be under our constitution other than a state affair under 
the control of the legislature. We believe that the authority which 
a city has over railroads arises from the provisions of section 11 
of article XI of the constitution rather than from the provisions 
of section 6 of article XL Section 6, before November 3, 1914, 
provided that city charters, except in municipal affairs, should 
be subject to and controlled by general laws. Section 11 reads: 
"Any county, city, town, or township may make and enforce 
within its limits all such local, police, sanitary and other regula- 
tions as are not in conflict with general laws." The principle is, 
that if the power comes from section 6 it is then a mtmicipal 
affair and the charter provision is paramount to general laws on 
the same subject. But a power which is exercised under section 
II is subject to displacement by the enactment of a general law 
on the same subject, no matter what the charter may say. We 
will not go so far as to say that no police or sanitary regulations 
may not be municipal functions and beyond control by the legis- 
lature; but we believe that the purpose of this section is to allow 
municipalities authority to regulate their local police and sani- 
tary situation in matters which only incidentally affect police 
questions of general state concern and only so long as the state 
legislature refrains from acting thereon. 

The charter provision of Los Angeles mainly relied on to 

give the city power to regulate the place and manner of street 

t 

BSinton v. Ashbury (1871), 41 Cal. 525, 531; People v. Holladay 
(1892), 93 Cal. 241, 248, 29 Pac. 54, 27 Am. St. Rep. 186; Hellman v. 
Shoulters (1896), 114 Cal. 136, 149, 44 Pac. 915, 45 Pac. 1057; Byrne v. 
Drain, supra, n. 3. 

•Cal. Stats, 1889, p. 457. 



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REGULATION OF RAILROAD CROSSINGS 295 

and railroad crossings is in these words: "To regulate, subject 
to the provisions of the constitution of the State of California, 
the construction and operation of railroads .... and the works 
or plants of any other public utility.^** We cannot convince our- 
selves that all of the powers enumerated in this provision are 
strictly mtmicipal functions. In particular, we do not believe 
that the "regulation of the construction and operation of railroads" 
is a municipal function. On the contrary, we believe it is essen- 
tially a state affair and under the control of the legislature. We 
believe tthat this must necessarily be so, apart from any con- 
stitutional provision on the subject, and that the court, if looking 
squarely at the question, would so declare. Such a view does 
not oust the city of all jurisdiction, but such jurisdiction as it 
has is probably only concurrent in its nature, and subject to be 
superseded by general laws. The local police power which a 
municipality may exercise over railroads is derived from section 
II of article XI, namely, "to make and enforce all such local, 
police, and sanitary regulations as are not in conflict with gen- 
eral laws." The situation is much like that between a state in 
the exercise of its police power and the general government in 
the exercise, say, of its power over interstate commerce. The 
state, in the absence of congressional legislation, may do many 
things which incidentally affect interstate railroads, such as 
regulate the speed of trains and stopping places, but its regula- 
tions must yield whenever they conflict with the powers belonging 
to Congress.** Here the city may exercise its regulatory control 
over railroads subject to any general laws. Therefore, we believe 
that the amendment to the Los Angeles charter in 1911 giving 
the city power to "regulate, subject to the provisions of the Con- 
stitution of the State of California, the construction and operation 
of railroads," was a power or mere local police regulation, al- 
ready authorized by section 11 of article XI, and defeasible by 
general legislation. Section 17 of article XII of the constitution 
has always declared that "all railroad, canal and other transpor- 
tation companies are common carriers, and subject to legislative 
control." And the Supreme Court has said: "It is universally 
recognized that the state in its sovereign capacity has the original 

loCal. Stats. 1911, p. 2063. 

"Adams Express Co. v. Kentucky (1909), 214 U. S. 218, 53 L. Ed. 972, 
29 Sup Ct. Rep. 633. 



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296 CALIFORNIA LAW REVIEW 

right to control all public streets and highways, and that except 
in so far as that control is relinquished to municipalities by the 
state, either by provision of the state constitution, or by legisla- 
tive act not inconsistent with the constitution, it remains with 
the state legislature to be exercised in any manner not prohibited 
by the state constitution."^* 

If the state has a supreme right over streets and highways 
in general, how much more obvious is its jurisdiction over rail- 
roads, whose franchises^ are derived from l^slative authority,^* 
and which operate through several counties and perhaps through 
the whole length of the state. Just because the proposition is so 
obvious, is why we are perhaps lacking in direct judicial authority 
thereon. 

(2) In the second place, it seems to us, from an examination 
of the law, that whatever jurisdiction the city might otherwise 
have exercised over the place and manner of railroad crossings 
had, at the time of the institution of proceedings in the present 
case, been superseded by appropriate general laws. Under section 
6 of article XI of the constitution as it has existed since November 
3, 1914, it would not be necessary for a new city charter or a 
properly amended charter to make claim of any specific power as 
a mtmicipal affair; all affairs that are municipal belong to it as 
of course. But between November 3, 1896, and November 3, 1914, 
it was necessary for a city to enumerate the municipal functions 
which it wished to exercise in order to be exempt from general 
laws.** And, of course, both before November 3, 1914, and 
since then, a function, even though claimed in the charter as 
municipal, would not be held within the competence of the city, 
if in fact it be a state affair and not a municipal one. 

The court says that the charter of Los Angeles as amended 
in 191 1 contained a clause giving to the city power "to regulate, 
subject to the provisions of the Constitution of the State of 
California, the construction and operation of railroads, and other 
public utilities in their operations within the city. (Sec. 2, subd. 
30.)" And then the court says further: "The charter of 1889 ^^^ 



"Western Union Tel. Co. v. Hopkins (1911), 160 Cal. 106, 118. 
116 Pac 557. 

"San Francisco & San Mateo Elec. Ry. Co. v. Scott (1904), 142 Cal. 
222, 75 Pac. 575. 

i*Fragley v. Phelan (1899), 126 Cal. 383, 58 Pac 923. 



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REGULATION OF RAILROAD CROSSINGS 297 

the amendments of 1905 and 1909 to section 2 gave to the city 
similar powers. (Stats. 1889, 457; Stats. 1905, 994; Stats. 1909, 

1291.)" 

We submit that the court is mistaken in saying that the char- 
ter of 1889 and the amendments of 1905 and 1909 had similar 
provisions to that of 191 1. We believe that the amendment of 
191 1 giving the city power of regulation over the construction 
and operation of railroads was new. The charter of 1889 had 
no provision mentioning railroads. Subdivisions 7 and 8 of sec- 
tion 2 read as follows: 

"7. To provide for supplying the city and its inhabitants 
with water or gas, or either, or other means of heat and 
illumination. 

"8. To lay out, open, extend, widen, improve, or vacate, 
pave, and repave streets and alleys, sidewalks and crossings, 
and other highways."^'* 

In 1905 subdivision 7 of section 2 was amended to read as 
follows : 

"(7) To provide for supplying the city and its inhabitants 
with water and gas, or either, or with other means of heat, 
illumination or power; and to acquire or construct and to 
lease or operate, and to regulate the construction or opera- 
tion of conduits or of railroads or other means of transit or 
transportation, and of plants and equipments for the produc- 
tion or transmission of gas, electricity, heat, refrigeration or 
power, in any of their forms, by pipes, wires or other means; 
and to incur a bonded indebtedness for any of such purposes, 
provided the question of the issue of bonds therefor shall first 
be submitted to the qualified electors of the city at a special 
or general election, and that three-fifths of the votes cast on 
the question of said issue of bonds shall have been cast in 
favor thereof."** 

In 1909, subdivision 7 was amended by inserting the word 
"electricity" after the first mention of water and gas, and by 
changing the vote necessary for issuing bonds from three-fifths to 
two-thirds of the votes cast. Another subdivision mentioning rail- 
roads, numbered "(7b)" was added, as follows: 

"(7b). To acquire or build and operate railroads and 
interurban railroads from any point within the city limits, to 
any place or places within Los Angeles county and located 

" Cal. Stats. 1889, p. 457. 
i« Cal. Stats. 1905, p. 994. 



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298 CALIFORNIA LAW REVIEW 

on the ocean, or any inlet thereof, for the purpose of trans- 
porting passengers or freight between the city and the ocean, 
and to fix and collect charges therefor."^^ 
Superficially read, the amendment of 1905 would seem to 
give a general power to regulate railroads, but further consider- 
ation seems to lead to the obvious conclusion that the amendments 
of 1905 and 1909 were intended to invest the city with authority 
to construct and maintain municipally owned railroads and other 
utilities. It is furthermore manifest that the purpose in subdi- 
vision 7 was to authorize intramural railroads only, for sub- 
division 7b was added in 1909 in order to authorize interurban 
and tide-water railroads. Los Angeles, along with some other 
cities in the state, was leading the way towards municipally owned 
and operated utilities. And this tendency found expression in 
the constitution as amended in 191 1, by declaring that "any muni- 
cipal corporation may establish and operate public works for 
supplying its inhabitants with light, water, power, heat, transpor- 
tation, telephone service or other means of communication.** The 
constitution here indicates the kind of public utilities which it 
is proper for municipalities to control, and, hence, control over 
which is properly a municipal affair. For what the city is here 
authorized to do for itself, it might under proper charter pro- 
vision empower private enterprise to do. But while "transporta- 
tion" is here authorized, it is transportation within the city by 
means of street railways and not transportation into and out of 
the city, whether by railroad or otherwise. Further, in interpret- 
ing subdivision 7, given above, as amended in 1905, it is well to 
remember these words of our Supreme Court: "It is thoroughly 
settled that language purporting to define the powers of a munici- 
pal corporation is to be strictly construed, and that any 'fair, 
reasonable doubt concerning the existence of the power is re- 
solved by the courts against the corporation, and the power is 
denied.' (i Dillon on Municipal Corporations, §89.)"" 

Now, proceedings in the case under discussion, to condemn 
property of the railroad company in order to open a street across 
their right of way, were begun December 26, 191 1. Action in 
the superior court was begun April 18, 191 2. 

"Cal. Stats. 1909. p. 1291. 
18 Cal. Const. Art. XI. § 19. 

i»Oro Electric Corp. v. Railroad Commission (1915), 169 Cal. 466, 
477. 147 Pac. 118. 



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REGULATION OF RAILROAD CROSSINGS 299 

On February 10, 191 1, the Railroad Commission Act was 
passed, conferring upon the Railroad G)mmission exclusive power 
over railroad crossings, whether of one railroad by another rail- 
road, or of a railroad by a public road or highway; such power 
including the point of crossing, and separating, changing or 
abolishing crossings.*® Section 22 of article XII of the constitu- 
tion, as amended October 10, 191 1, declared that the provisions 
of the Railroad Commission Act of February 10, 191 1, should be 
construed with reference to that section and any other constitu- 
tional provision becoming concurrently operative therewith. The 
act of February 10, 191 1, was thus given constitutional sanction, 
and the provision above referred to was later made more explicit 
by section 43b of the Public Utilities Act of December 23, 191 1, 
which defined what was meant by railroad crossings, saying that 
the Railroad Commission should have exclusive authority over 
"each crossing of one railroad by another railroad or street rail- 
road, and of a street railroad by a railroad, and of each crossing 
of a public road or highway by a railroad or street railroad and 
of a street by a railroad or vice versa."'* 

Thus, by operation of the general law of February 10, 191 1, 
which was in effect made part of the constitution by vote of 
the people on October 10, 191 1, control over crossings between 
streets and railroads had been vested in the Railroad Commis- 
sion. Now, of course, if the matter of railroad crossings within 
city limits is wholly a municipal affair, the state legislature could 
not permanently bar chartered cities from exercising their rightful 
functions; but the presumption is at least just as strong that the 
legislature in enacting section 15 of the Act of February, 191 1, 
was within its rights, when it explicitely charged the Railroad 
Commission with exclusive control over railroad crossings, as that 
the people of Los Angeles were within their rights, when they 
claimed control over railroads as a municipal function, if indeed 
that was their intention, which we doubt. The general law of 
February, 191 1, and the Los Angeles charter provisions of October, 
191 1, must cither be in accord or in conflict. We are unable to 
see any conflict. There is no reason to suppose that the power 
distinctly vested in the Railroad Commission by the Act of 



««Cal. Stats. 1911, p. la 

«iCal. Stats. Extra Session 1911, p. 40. 



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300 CALIFORNIA LAW REVIEW 

February was withdrawn therefrom, as to Los Angeles, by the 
charter amendment of March. And the wording of the charter 
amendment is in further support of the view that no conflict was 
thereby caused. Every consideration leads to the conclusion that 
the charter amendment "to regulate, subject to the provisions of 
the Constitution of the State of California, the construction and 
operation of railroads," was but a specification of the powers 
authorized by section ii of article XI of the constitution, namely, 
local police control. The legislature, by the act of February, 191 1, 
evidently thought that police control of railroads by local govern- 
ments should, so far as the character of railroad crossings was 
concerned, be withdrawn from local control and be given over to 
general state supervision. Los Angeles lost nothing that was 
peculiarly municipal ; at most, what she lost was the local adminis- 
tration of a state affair. 

As persuasive argument that the city did not have complete 
control over railroad crossings by force of the charter amend- 
ment of March 25, 191 1, is a charter amendment of January 17, 
1917, adding a new subdivision, which gives the city power "to re- 
quire or provide for the elevation or depression, in whole or 
part, of railway or railroad tracks."** This argues that the people 
of Los Angeles did not conceive that the city already had control 
over railroad crossings. Of course, this amendment of 191 7 is, 
in our view of the law, entirely ineffectual so far as it may pur- 
port to cover subjects embraced in the Railroad Commission Act 
of February, 191 1 ; and, so far as it may intend to specify a 
municipal affair, it was quite unnecessary, for at the same time 
an amendment was adopted and ratified, which gives to the City 
of Los Angeles the control over all municipal affairs contemplated 
by section 6 of article XI of the constitution as amended on 
November 3, 1914. This comprehensive amendment of the Los 
Angeles charter reads: "To make and enforce all laws and regu- 
lations in respect to municipal affairs, subject only to the restric- 
tions and limitations provided in this charter."** 



22 Cal. Legislature, 1917, Assembly Concurrent Resolution No. 3. 

2* It is astonishing that other cities in the state have not pursued the 
course now adopted by Los Angeles of securing by a two or three line 
amendment all the privileges afiForded by the amendment of section 6 of 
article XI of the constitution as adopted on November 3, 1914. All 
municipal aflfairs now belong to chartered cities- by force of section 6. All 



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REGULATION OF RAILROAD CROSSINGS 301 

(3) In the third place, we believe that sections 22 and 23 
of article XII of the constitution as amended in 191 1 invested 
the Railroad Commission with exclusive power over the place 
and manner of railroad crossings. 

We have seen that the Railroad Commission Act of February, 
191 1, in section 15, invested the Railroad Commission with "ex- 
clusive power to determine and prescribe" every condition per- 
taining to the crossings between railroads and highways. And 
this act was ratified by the constitutional amendment of section 22 
of article XII on October 10, 191 1. Section 22 further declared 
that no provision of the constitution should be construed as a 
limitation upon the authority of the legislature to confer upon 
the commission ''additional powers," an authority declared to be 
plenary and unlimited by any provision of the constitution. The 
Supreme Court has held that this empowered the legislature to 
grant to the Commission any power which is "germane or cog- 
nate to the purposes for which the Railroad Commission was 
created."** Now, indubitably, it is at least germane or cognate 
to the purposes for which the Commission was created to em- 
power it to regulate railroad crossings. Therefore, section 15 
of the Railroad Commission Act of February, 191 1, so investing 
the Commission and thus ratified by the Constitution, might even 
be said to control and displace so far as it goes the municipal 
affairs clause of section 6 of article XI. If therefore the regula- 
tion of state railway systems within a city might be regarded 
as a municipal affair, it may well be admitted that the legislature 
through its "plenary and unlimited" authority could declare in 
whatever particulars it chose that such regulation should cease 
to be under the exclusive jurisdiction of the city. 

Furthermore, section 22, by its adoption of the Railroad Com- 
mission Act, had, as to all the matters contained in that act, re- 
moved the exemption of section 23, reserving to cities control of 
public utilities already vested in them. This is made plainer by 
the concluding sentence of section 23; to-wit: "Nothing in this 
section shall be construed as a limitation upon any power con- 



police powers exercisable by a city are expressly granted by section 11. 
Under these two comprehensive grants, municipal charters may be made 
very brief. 

«* Pacific Tcl. & Tel. Co. v. Eshleman (1913), 166 Cal. 640, 137 Pac. 
1119, 50 L. R. A. (N. S.) 652. 



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302 CALIFORNIA LAW REVIEW 

ferred upon the Railroad Commission by any provision of this 
Constitution now existing or adopted concurrently herewith." 
The power over railroad crossings had been clearly and fully given 
to the Commission and could not be withdrawn by any general 
exemptions or reservations. 

Finally, the proviso in section 23, reserving to cities such con- 
trol over public utilities as they chose to retain, said that "this 
section," that is section 23, should not affect such control. Now 
section 23 deals with the regulation of public utilities generally in 
their relation to the Railroad Commission, while section 22 deals 
with the organization of the Railroad Commission and its powers 
over railroads and other transportation companies. It is section 
22 that incorporates the Railroad Commission Act of February 9, 
191 1, which, among other things, gave to the Commission exclu- 
sive control over the conditions of railroad crossings. So far then 
as the constitution is concerned, there is no reservation made to 
municipalities of control over the conditions under which railroad 
crossings may be constructed. Again, by amendment in Novem- 
ber, 1914, the meaning of the reservation was made plainer, by 
saying that the section should not affect such powers of control 
over public utilities "as relate to the making and enforcement of 
local, police, sanitary, and other regulations." As is obvious, the 
phraseology is peculiar and is identical with the well-adjudicated 
phraseology used in section 11 of article XL This last men- 
tioned section grants to local communities power to make such 
regulations only so long as no general law exists. The conclusion 
is inevitable that the exemption was susceptible of removal by 
general law. 

William Carey Jones. 
Berkeley, California. 



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The Extralateral Right: Shall It 
Be Abolished? 



IV. CONCLUSION. 
Growth of Opposition. 

Wf /HEN the first concerted attempt to abolish the extralateral 
\A/ right was made is uncertain. The Act of 1866 was 
adopted without serious opposition to this feature.^ It 
is true that Julien in the House of Representatives attacked this 
idea of granting a right "allowing one man to run half a mile 
under the land of another" but he did this because of his bitter 
opposition to the bill as a whole and not because he had any 
special information on the subject. Instead of representing mining 
sentiment in the West, he was the chief exponent of the plan which 
had taken such a strong hold in the East of selling or leasing 
the mines to the highest bidder and devoting the proceeds toward 
liquidating the national debt. His opposition to the extralateral 
feature was due to his general attitude of hostility to the desire 

1 William M. Stewart who has been so frequently and unjustly charged 
with forcing the federal mining Acts of 1866 and 1872 upon an unsus- 
pecting public took a leading part in the Comstock litigation during the 
early 60*5. " .... it was his plan to induce the different companies on 
the lode to put an end to otherwise certain litigation by defining their sur- 
face lines or the boundaries of their claims accurately and finally 

When the boundary lines were determined it was to be stipulated that 
planes should be drawn perpendicular to these lines, extending indefinitely 
downward and that the mining operations of all companies should be 
confined within the limits of the planes bounding their respective 

claims Now this was substantially a relinquishment of the cherished 

but litigious principle which allowed a locator to follow the dips of his 
ledge indefinitely, and a substitution of the often-decried Spanish or Mex- 

can system of allotment Unfortunately, the trustees of the Choller 

Gnnpany could not be persuaded to adopt Mr. Stewart's views, and he was 
reluctantly obliged to abandon his project and continue the fight." This 
role of Senator Stewart as champion of the vertical boundary system will 
surprise many who have ignorantly charged him with having originated 
the extralateral right idea in America. Comstock Mining & Miners by 
Lord Monograph, IV U. S. G. S., p. 145. 

The Eureka mining district of Nevada on February 27, 1869, adopted a 
resolution declaring that the mineral in that district was found in the form 
of deposits rather than in true fissure veins or ledges and "Whereas this 
defidency in the law may give rise to expensive litigations," square claims 
with vertical boundaries were adopted. Tenth U. S. Census, Vol. XIV, 
pp. 551-2. 



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304 CALIFORNIA LAW REVIEW 

of the West to have the long exercised right of free mining on 
the public domain recognized by positive legislation. 

When the bill to amend the Act of 1866 was introduced in 
Congress in 1870 and 1871 and was finally enacted in 1872, no 
comment whatsoever was made on the extralateral feature during 
the course of the reported debates. Other provisions of the bill 
were extensively debated and altered but the section conferring 
the extralateral right remained unchanged and was not even 
criticised.' 

Decided opposition to this feature of the mining law was 
definitely expressed, however, before the Act of 1872 had been 
in force many years. By Act approved March 3, 1879,* Congress 
authorized the appointment of a Conmiission to investigate the 
operation of the public land laws of the United States and make 
"such recommendations as they may deem wise in relation to the 
best methods of disposing" of such lands. A consideration of 
public mineral lands and the laws governing their disposition 
naturally came within the scope of the investigation of this Com- 
mission. This Commission made an elaborate report in 1880.* 

Commenting on the creation of a new class of public lands in 
the United States ; viz., mineral lands, resulting from the discovery 
of gold in California, the report states that the army of prospectors 
who roamed over the mountain ranges in quest of speedy wealth 
were not agriculturalists in search of homes but were composed 
of persons who desired to obtain title to mines. 

"As the region was a wilderness, and the authority of 
the general government was but imperfectly extended over 
the country, the miners framed for themselves regulations 
for their own government — crude, it is true, but in a general 
way securing justice. Under these local regulations or laws 
possessory rights to mineral lands were acquired which were 
afterwards confirmed by statutory law, and thus this second 



* There may have been some discussion in committee but these proceed- 
ings were not reported and the fact that the elaborately worded apex 
section granting the extralateral right remained unchanged throughout all 
this discussion when other features of the bill were being radically amended 
and, as finally adopted in 1872, the fact that this section was identical in 
language with the corresponding section of the bill that had been introduced 
in the previous session of Congress, leads to the conclusion that there was 
then no serious opposition to the extralateral right. 

* 20 Stats, at L. 394. 

*Pub. Land Coin. Rep. (Washington, 1880), 690 pp. 



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EXTRALATERAL RIGHTS 305 

class of lands was practically recognized in the administration 
of land affairs." 

The Commission pointed out that if this land had been in 
private ownership the prospector would have been barred 

"and the mining industry which has so rapidly grown up in 
that country would have been delayed for years, perhaps for 
centuries. .... 

"Free exploration and the right to acquire property in 
mines by discovery led to the establishment of the great min- 
ing industries of the West Thus a wise system of 

administering affairs relating to mining lands must recognize 
the importance of discovery in which poor men can en- 
gage • 

"The United States mining laws of 1866 and 1872 are 
directly descended from the local customs of the early Cali- 
fornia miners."* 

Investigating the operation of these mining laws which spread 
from California throughout the West and which "have stemmed 
the tide of Federal land policy and given us a statute book with 
English common law in force over half the land and California 
common law ruling in the other/'^ the Commission called attention 
to the fact that east of the Missouri, mineral development was 
almost exempt from litigation growing out of conditions of the 
government conveyance of mineral lands while in the west it 
was "a history of the most frequent, vexatious, costly, and dam- 
aging litigation." 

"There are two general features in the existing statutes 
which have provoked and directed the main lines of legal 
contest, and they are, first, the recognition by the law of Sie 
local customs and regulations; second, the attempted con- 
veyance of a lode, ledge or deposit of rock in place bearing 
mineral, as a thing separate from and independent of the sur- 
face tract of ground, with the permission to follow such lode or 
deposit on its dip, even when in the downward course it 
passes beyond the side lines of the surface claim."® 
Pointing out the magnitude of the evil of allowing the mining 
communities the right of local regulation, the Commission urged 
that this source of endless litigation should be promptly abolished 
by Congressional enactment. 



» Id., pp. XIX-X. 
« Id., p. XXXII. 
T Id., p. XXXIV. 
•Id., p. XXXV. 



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3o6 CALIFORNIA LAW REVIEW 

Taking up the second great class of evils, "those incident to 
the theory of the lode or ledge location," the Commission makes 
the following comment: 

"It has proved in practice and in law that a lode or ledge 
is an absolutely indefinite thing, and the act of following 
this formation whose nature and limits can not be fixed be- 
yond the locator's surface ground and under the surface 
ground of another owner, is the most frequent and vexatious 
cause of litigation." 

This right to follow a lode into the ground of another works 
"a minimum of mischief in the case of a well defined fissure vein 
of regular course and dip." 

"With such a defined fissure vein, by spending many 
thousand dollars and provided his cloud of expert witnesses 
are not tripped up by clever cross-examination, and the judge 
is impartial, and the jury are not corruptly influenced against 
him, after many months and perhaps years, during which his 
enterprise has been hand-cuffed with injunctions and himself 
reduced to poverty, the owner might derive whatever hollow 
comfort he could from a victory which left him ruined."* 

"From this somewhat favorable working of the law" the Com- 
mission went on with the examination of other classes of cases 
involving complex vein occurrences and pointed out the impossi- 
bility of reconciling these with the practical workings of the law 
of apex. 

"Your Conmiission, after a review of the lines of mining 
contests and a consideration of the complex nature of ore de- 
posits, are unanimous in the conviction that any attempt on 
the part of the United States to convey such deposits as 
individual things beyond the vertical planes bounding the 
surface claim, must always end in a history of intolerable 
injustice." 

It therefore recommended a repeal of the extralateral right 
and the substitution of the common-law system of vertical boun- 
daries in its stead.^® 

The Commission submitted to Congress a draft of a proposed 



•This is rather a sorry picture and while somewhat overdrawn would 
indicate that some at least of the Public Land Commission had come in 
contact with extralateral litigation. 

10 Pub. Land Com. Rep. (Washington. 1880). pp. XXXVII-XLI. The 
fact that this commission included in its number such eminent men as 
Clarence King. Thomas Donaldson. J. W. Powell and J. A. Williamson, 
gave this report more than ordinary weight. 



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EXTRALATERAL RIGHTS 307 

Public Land law which contained among other provisions the 
following : 

"Section 169. — ^Any mining claims located after the 

day of — 1880, shall be bounded as to surface by straight 
lines, and all right to minerals contained therein shall be 
confined within vertical planes passing downward through 
said straight boundary lines." 

"Section 170. — A mining claim located after — day of 

may equal but shall not exceed a square of feet 

on the side, and the same may be in any shape, so that 

neither length nor breadth shall exceed feet, nor the 

aggregate area exceed that of the square hereinbefore first 
described."" 

Concerning the area of the common law mining claim the 
Commission made no recommendation since it had not received 
"a full expression of popular opinion," and that question was 
remitted to the legislative judgment of Congress.^* 

Assuming that it were desirable to abolish the extralateral 
right, this was the most favorable time to have eliminated it. 
The Act of 1872 had been in force only eight years and to have 
wiped out the law of apex at that time would have resulted in 
infinitely less hardship and readjustment than must inevitably 
follow if that right be abolished after the Act has been in force 
for nearly half a century. Since this report of the Public Land 
Commission was issued, the attempt to repeal this feature of the 
mining law has been urged at intervals.*' In recent years this 
sentiment has increased to such a marked degree, and the abolition 
of the right is now advocated by so many distinguished mining 
authorities and leading mining associations*^ that the subject de- 
mands serious consideration." Most of this agitation, however, 
has thus far been entirely too much engrossed with partisan con- 
denmation of the law of apex, while but slight consideration has 
been given to the principles underlying the origin and exercise 



" Id., p. LXXVIII. 

12 Id., p. XLI. 

1' See the files of the Mining & Scientific Press and Engineering & 
Mining Journal. 

** Senate Document No. 233 (64th Congress, 1st Session). Report of 
Meeting of the Mining & Metallurgical Society of America in collaboration 
with the American Mining Congress, the American Institute of Mining 
Engineers, etc. 

!• There were several bills introduced in the 64th Congress, providing 
either for the outright repeal of the extmlateral right or profoundly 
amending the mining law in many respects. 



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3o8 CALIFORNIA LAW REVIEW 

of the right and those features which furnish some measure of 
justification for its existence; and, most important of all, prac- 
tically no thought has been directed to the consequences which 
must inevitably flow from an outright repeal. These conse- 
quences are exceedingly vital and far reaching and, unless the 
anti-extralateral advocates can furnish some practical solution 
which will minimize the mischief, the advocacy by many of them 
of outright repeal of the extralateral and discovery features of 
the mining law without a corresponding readjustment of our public 
land laws all along the line to meet this sweeping change, is going 
to produce results which will be most detrimental to the mining 
industry. 
The Extralateral Right Principle is Ideal in Theory. 
It is generally conceded that the fundamental principle of the 
extralateral right is ideal in theory. The statements of those who 
have analyzed the situation surrounding the occurrence of lode 
or vein deposits and who have pointed out the lack of any essential 
relation between veins or mineral deposits in depth and the over- 
lying surface amply support the principle of severance." All that 
one has to do is to picture a vein dipping at an angle into the 
earth and visualize the result of vertical planes passed through 
surface boundaries cutting off the right to mine on the vein in 
depth at various points. Take the case where there are several 
veins dipping either parallel to each other or at varying angles 
and realize the complex condition that would result if overlying 
surface ownership controlled and vertical planes were projected 
downward to chop these veins up into segments of varying size 
and at different depths. Then conceive of the ideal condition 
under the extralateral law where the apex proprietor can follow 
a certain length of vein down indefinitely on its dip no matter 
where it leads. The practical result where veins are controlled 
by surface ownership and chopped up into segments of varying 
size and at varying depth is to bring about an attempt to consoli- 
date the right to mine on the vein and thus sever the under- 
ground rights from the surface rights and make them independent 
of one another. Only by this means can veins be most economi- 
cally operated. The intent of the extralateral law was to ac- 



i«4 California Law Review, pp. 371-374, 388; 4 California Law Review, 
pp. 456-458. 



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EXTRALATERAL RIGHTS 309 

complish this result in the first instance and avoid the necessity 
of subsequent consolidation, and hence the extralateral law is 
based on the fundamental conception of economic operation. 

But, unfortunately, though the extralateral law is ideal in 
theory, it is far from ideal in practical results. If veins were 
ideal, with regular width and dip and strike, the extralateral law 
would work to perfection and no one could seriously advocate 
any change. Veins are, however, so complex in their occurrence 
with branches, faults, splits, junctions and every conceivable varia- 
tion in strike and dip and width, and degree of mineralization, 
that no matter how well the law of the extralateral right may 
become settled, there will always be disputes arising over these 
physical vagaries.^^ 

The candid investigator must admit that because of this situa- 
tion the extralateral law is open to serious objection. Just how 
serious these objections are and whether they justify such drastic 
action as an outright repeal of this feature of the law will next 
be considered. 
The Main Reason for Eliminating the Extralateral Right. 

If we analyze the arguments advanced by those who advocate 
abolishing the extralateral right, we find that they practically all 
resolve themselves into the objection based on an excessive amotmt 
of litigation." 

It has been assumed by most of these critics without investi- 



iT **Wc propose to abolish the law of apex not because the theory is 
objectionable but because the question of physical fact gives rise to never 
ending litigation." Victor G. Hills, in Transactions of American Institute 
of Mining Engineers, Dec. 1916, p. 2200. 

^•A critical examination of the statements made by those who are 
opposed to the retention of the extralateral right as reported at the meet- 
ing of the Mining & Metallurgical Society of America (Dec. 16, 1915) dis- 
closes that the main reason advanced for the repeal of the law was "con- 
tinuous litigation," ''uncertainties of title and litigation," "vexatious and 
most burdensome litigation," etc. See Senate Document No. 233 (64th 
Congress, 1st Session) ; also Bull. No. 91, Vol. VIII, No. 12, Mining & 
Metallurgical Society of America. See also the expressions of opinion con- 
tained in Transactions of the American Institute of Mining Engineers, Vol. 
XLVIII, pp. 368-371, in paper entitled "Why the Mining Laws Should Be 
Revised," by Horace V. Winchell. 

Aguillon in Legislation des Mines Etrangere (1891), Vol. II, p. 292, 
mentions the historical lawsuits which have arisen in America through the 
right to follow mineral deposits downward indefinitely under adjoining 
surface. 

"The law of the apex has proved more productive of expensive litiga- 
tion than economical mining." Annual Report of Director of U. S. G. S. 
(1911), p. 15. 



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3IO CALIFORNIA LAW REVIEW 

gation that extralateral litigation is a common occurrence in the 
various mining camps and has become a great burden which is 
seriously hampering the mining industry. A careful examination 
of the statistics leads one to believe that the real situation has 
been exaggerated. There has been much expensive litigation but 
it must also be borne in mind that because of the magnitude of 
the interests involved, such mining cases attract more than their 
due share of public attention.^* Taking into consideration the 
immense importance of the mining industry and the fact that 
its operations are spread over such a vast territory in the West, 
the wonder is, not that there are so many extralateral cases aris- 
ing, but that there are comparatively so few. A careful analysis 
of the law reports and tabulation of all extralateral cases appear- 
ing therein*® indicates that during the years 1870-1916 inclusive, 
in all of the western states there has been an average of less 
than three extralateral cases per annum which have been reported.*^ 

The reported cases do not, of course, include all the extralateral 
cases which have arisen within this period, but they do include 
the more important cases and afford a very reliable criterion of 
the proportion of cases arising in the various years. The tabula- 
tion indicates that the maximum of reported cases was reached 
in the year 1902 when ten cases were reported.** Since 1902 the 
number of reported cases has steadily decreased so that for the 
past decade, excluding duplications of the same case, extralateral 
litigation has not averaged two reported cases a year. During 
the years 1908 and 191 1 there were no extralateral cases whatever 
reported. 

The federal extralateral decisions of the trial courts usually 
find their way into the reports because of their importance. The 
extralateral decisions in the state trial courts are not found in 



^* In a similar way, because criminal trials are heralded with head lines 
in the daily press, it is little wonder that the erroneous idea is prevalent 
that the legal profession devotes the greater part of its time to criminal law. 

20 The writer acknowledges his indebtedness to Mr. Herbert C. Hoover 
for permission to use material which was tabulated at his request by Mr. 
Robert M. Searls of the San Francisco Bar. Mr. W. J. Aschenbrenner, 
also of the San Francisco Bar, has continued this tabulation to date. 

^^This estimate does not include the decisions on appeal from lower 
courts where the same case is reported below, since these appellate decisions 
would represent a duplication of cases already considered. 

*>Many of these arose out of the Heinze-Anaconda battles in Mon- 
tana and most of the remainder were connected with the Cour d'Alene crop 
of litigation. 



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EXTRALATERAL RIGHTS 311 

the reports but these cases are of such magnitude that they often 
reach the state appellate courts. The tabulation, therefore, in- 
cludes practically all of the extralateral cases which have arisen 
during the past forty-five years, except the few cases which were 
not carried beyond the state trial courts. It is, of course, im- 
possible to arrive at the exact number of these unreported cases 
and determine the percentage they bear to the reported cases, but 
judging from actual information obtained in many of the impor- 
tant western mining states, it is doubtful if the number of these 
unreported cases arising in the state courts would much exceed 
twenty-five per cent of the total number of reported cases. This 
would increase the average number of extralateral cases arising 
during the past forty-five years to slightly in excess of three cases 
per anntun. Even assuming that the average number of unreported 
cases were equal in number to the cases actually reported, the 
total annual average would be less than six cases, with the past 
decade showing a material decrease even in this small number. 

It would hardly seem that these few cases arising in the en- 
tire West, especially where an industry of such magnitude and 
importance as that of lode mining is involved, would justify the 
extravagant statements that have been made by some who urge 
the abolition of the right.*' It must be remembered that this 
charge of excessive litigation is the main reason urged for re- 
pealing the "law of apex." 

The deductions of the writer as to the comparatively small 
amount of extralateral litigation which has arisen, when we con- 
sider the vast number of lode mines being operated throughout 
the West under the extralateral law, is corroborated by an in- 
dependent line of investigation made by Charles H. Shamel, the 
author of "Mining, Mineral & Greological Law." Proceeding along 
entirely different lines, he examined the syllabuses of all of the 
cases reported in Morrison's Mining Reports which contain all 
of the important mining decisions reported in the United States 
during the past half century. He arrived at the following result: 

••The comparative in frequency of extralateral cases is illustrated by 
the fact that no extralateral case has yet appeared in the reports from 
Alaska, and thus far only one has been reported from Arizona. In Cali- 
fornia, which was the birthplace of the law of apex, the reported cases 
have averaged one for each three-year period during the past forty-five 
years. During the past decade there has been no reported case arising in 
California. Two unreported cases have been tried and decided in Cali- 
fornia during that period. 



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312 CALIFORNIA LAW REVIEW 

"I confess that I was surprised at the actual figures. The 
total number of syllabuses in the 22 volumes of decisions is 
S,8o8, of which the number concerning the apex law is 115. 

The apex cases are only about 1.9 per cent of the whole 

Instead of causing 99.9 per cent of mining litigation, as Dr. 
Raymond has somewhere stated, it has caused much less than 
its proportionate share of the trouble. Facts are stubborn 
things. The chief, the constantly reiterated, the convincing 
argument, against the apex law is based on a gross mistake 
as to the facts in the case."** 
Hon. Charles S. Thomas, one of the United States senators 
from Colorado, who, as an eminent mining attorney is well quali- 
fied to speak on the subject of mining litigation, corroborates this 
view as to the ratio of extralateral cases as compared to general 
mining litigation. Me says: 

"Now the vast amount of mining controversy — ^and 1 am 
speaking of numbers of actions — has not been apex litigation. 
They have been the most expensive and the most far reach- 
ing. They have perhaps resulted in the greater proportion 
of injustice; but the conflicting (surface) locations have pro- 
duced that multitude of cases, a small percentage of which 
perhaps reach the Court of Appeals, but whose aggregate has 
burdened the prospector and locator with an expense almost 
unbearable."**^ 
It is not therefore an excessive amount of litigation which 
can be legitimately charged to the extralateral right, for the actual 
number of cases arising is surprisingly small — insignificant even, 
when compared with the vast number of claims exercising this 
right — ^but rather, the only valid charge on this score which can 
be made, is the great expense incident to such few cases as arise.** 
Valid criticism must be based on expensive litigation and not on 
the ground of excessive litigation. 

Practical Difficulties of Revision. 
The advocates of the repeal of the law of apex have given but 
little consideration to the serious consequences which will in- 

** "Should the Apex Law be now Repealed?" Transactions of the 
American Institute of Mining Engineers, Vol. XLVIII, p. 312. 

*» Senate Document No. 233 (64th Congress, 1st Session), p. 65. 

*• The vast amount of costly litigation arising in the oil fields of Cali- 
fornia is strong proof that the vertical boundary system is not immune 
from this evil. Shamel cites the famous litigation involving vertically 
bounded zinc deposits in New Jersey, lasting for nearly half a century. 
Transactions of American Institute of Mining Engineers, Vol. XLVIII, 
p. 347. 



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EXTRALATERAL RIGHTS 313 

evitably result unless other features of our public land law are 
simultaneously profoundly amended. 

The greatest practical difficulty which will follow from abol- 
ishing the extralateral right and confining a locator to the mineral 
found within the vertical boundaries of his location, is the fact 
that only in those locations which embrace the apex of the vein 
can a discovery of mineral be readily made. Discovery of mineral 
within the boundaries of the location is the most vital essential 
of our existing mining law.*^ 

Locations which include the apices or upper portions of the 
veins within their boundaries could still readily meet this impor- 
tant requirement of discovery, but surface locations overlying the 
dip of the vein at considerable distances from the apices or upper 
terminal edges of the veins could meet the discovery requiremnet 
only after the locators had expended considerable labor and time 
in sinking shafts to encounter the vein in depth. As the vein 
dipped further into the earth it would be increasingly difficult 
to make a discovery within the vertical boundaries of the overlying 
locations and finally at great depth the expense of sinking of such 
shafts would be absolutely prohibitive. It would be necessary 
under existing discovery requirements to sink vertical shafts on 
each surface location in order to perfect a discovery on each claim 
and there would be a consequent economic waste resulting from 
the expense of unnecessary duplication of such shafts. Under 
the extralateral law as it now exists a discovery on the apex of 
the vein is sufficient and the vein may be developed to great depth 
by a single shaft advantageously situated. 

The consistent advocates of the abolition of the extralateral 
right cheerfully concede that this practical difficulty is a serious 
one and they are therefore forced to urge that the discovery re- 



*^ 'THscovery is the all-important fact upon which title to mines de- 
pends." Lawson v. United States Mining Co. (1907), 207 U. S. 1, 13, 
52 L. Ed. 65, 28 Sup. Ct. Rep. 15. Discovery is the initial fact without 
which no rights to mineral lands can be acquired. Creede and Cripple 
Creek M. and M. Co. v. Uinta T. M. & T. Co. (1905), 196 U. S. 337, 345. 
49 L. Ed. 501, 25 Sup. Ct. Rep. 266. Discovery is the source of title to 
mining claims and the first discoverer must be protected in the possession 
of his claim. "Otherwise, the whole purpose of allowing free exploration 
of the public lands for the precious metals would in such cases be defeated, 
and force and violence in the struggle for possession, instead of previous 
discovery, would determine the rights of claimants." Ehardt v. Boaro 
(1885), 113 U. S. 527, 535, 28 L. Ed. 1113, 5 Sup. Ct Rep. 560. 



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314 CALIFORNIA LAW REVIEW 

quirement of our mining law be abolished also.'* Those who are 
familiar with the main features of our existing mining law will 
at once appreciate that if these two fundamental features — dis- 
covery and extralateral right — ^are eliminated, that our system of 
American mining law built up as a result of the years of exper- 
ience and intelligence of the practical pioneer miners will have 
been virtually emasculated. Very little more than an empty shell 
will remain. 

Let us pause for a moment to examine critically just where 
this radical alteration will lead. Many critics have stated that 
the discovery requirement is a feature characteristic of American 
mining law exclusively and that it is a useless requirement im- 
necessarily suffered by the American miner. Both of these state- 
ments are erroneous. The discovery requirement is characteristic 
of most of the systems of mining law in the world.'* 

The elimination of the discovery feature from our law would 
wipe out the simplest and most practical form of test as to 
whether land is mineral or not. As the writer has already pointed 
out in an article discussing the proposal to abolish the discovery 
requirement,'® it would be a grave mistake to eliminate this salu- 
tary provision from our law. Such elimination would destroy 
the simple test whereby mineral lands are now practically and 
easily classified under existing law so that mineral locators are 
able to readily defeat agricultural claimants desiring to obtain 
the same lands. The only alternative test that has been suggested 
would be to leave such classification to an appropriate branch of 
the Federal Government. Even this alternative would be open 
to serious objection. It would substitute the opinion of mineral 
experts and representatives of the Federal Government as to 
mineral character of land in place of the views of the practical 
miner; it would mean aggravating delays where mines were dis- 

M**You cannot abolish the extralateral right without abolishing the 
right of discovery. They are all tied up together." Transactions of Ameri- 
can Institute of Mining Engineers, Vol. XL VIII, p. 383. 

2* "Discovery in all ages and all countries has been regarded as con- 
ferring rights or claims to reward. Gamboa, who represented the general 
thought of his age on this subject, was of the opinion that the discoverer 
of mines was even more worthy of reward than the inventor of a useful 
art. Hence, in the mining laws of all civilized countries the great con- 
sideration for granting mines to individuals is discovery." Lindley on 
Mines, p. 335. 

80 "Revision of the Mining Law — Discovery," 3 California I-^aw Review 
191; Mining & Scientific Press (Feb. 7, 1914), Vol. 108, p. 246. 



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EXTRALATERAL RIGHTS 315 

covered in rugged or desert regions remote from centers of travel ; 
it would overturn a fundamental principle which was embodied 
in our mining laws by the pioneer miners, a principle which was 
already the heritage of ages of mining experience; and finally it 
would tear down and destroy to a large extent the great body of 
law that has gradually been built up with infinite patience and 
practical wisdom as a result of judicial interpretation operating 
through more than half a century. The law of discovery is now 
well settled and understood and to substitute for it an tmknown 
and untried quantity would mean another period of imcertainty 
and litigation until a similar line of interpretative decisions had 
been rendered with respect to the new law. This superstructure 
of judicial interpretation is as important a part of the law and 
is as necessary for its satisfactory working as is the organic law 
which it interprets. It is even more important in one sense, for 
the organic law may be created "overnight" as it were, while the 
interpretation and harmonizing of this organic law, especially in 
its relation to other laws, necessarily takes years to accomplish. 

Another practical difficulty to which the elimination of the 
extralateral right will give rise and which must not be overlooked 
is the fact that in certain of the western states condemnation 
of private rights of way for mining purposes is not permissible.'* 

The courts of these states have not taken the broader view 
followed in other states where it is held that the public welfare 
is so dependent upon the mining industry that a private mining 
operator can exercise the right of condenmation for rights of way 
for mining purposes.** 

The practical effect of the abolition of the extralateral right 
in those states which deny the miner such a right of condemna- 

•^ Inspiration Consolidated Copper Co. v. New Keystone Copper Co. 
(1914), 16 Ariz. 257. 144 Pac. 277; Consolidated Channel Co. v. Central 
Pacific R. R. Co. (1876), 51 Cal 269; Lorenz v. Jacob (1883), 63 Cal. 73; 
Amador Queen Mining Co. v. Dewitt (1887), 73 Cal. 482, 15 Pac 74, 
County of Sutter v. Nicols (1908), 152 Cal. 688, 694, 93 Pac. 872; Const, 
of New Mexico, §22; Const, of North Dakota, Art. 1, § 14; Const, of South 
Dakota, Art. VI, § 13; Const, of Washington, Art. 1, § 16, Art. XII, § 10. 

"People V. District Court (1888), 11 Colo. 147, 17 Pac. 298; Baillie v. 
Larson (1905), 138 Fed. 177; Ellinghouse v. Taylor (1897), 19 Mont. 462, 
48 Pac. 757; Dayton Gold and Silver Mining Co. v. Seawell (1876), 11 
Nev. 394, 408; Overman Silver Mining Co. v. Corcoran (1880), 15 Nev. 147; 
Byrnes v. Douglass (1897), 83 Fed. 45; Strickley v. Highland Boy Ck>ld 
Mining Co. (1906), 200 U. S. 527, 50 L. Ed. 581, 26 Sup. Ct. Rep. 301. 
For an excellent discussion of these divergent holdings, see Lindley on 
Mines, §§253-264. 



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3i6 CALIFORNIA LAW REVIEW 

tion would be to render him unable to operate as one mine two 
separated segments of the vein imderlying two separated parcels 
of surface land owned by him where the intervening surface 
owner objected. Under existing extralateral law he has the right 
to follow his vein on its dip irrespective of surface ownership 
overlying the dip." 

Another consequence of the elimination of the extralateral 
right would be to make the ownership of overlying surface all 
important. Under existing law the extralateral claimant fre- 
quently is willing to make a material concession to his neighbor 
when it comes to a dispute as to the ownership of surface of a 
portion of his claim. If the surface in controversy does not 
include any portion of the apex of the vein, the surface right fre- 
quently does not assume sufficient importance to justify litiga- 
tion and controversies are usually amicably settled or the surface 
proprietor bought out for a comparatively small sum. If the 
right to the vein should become entirely dependent upon surface 
ownership, as is the result where no extralateral right exists, it 
is obvious that surface title becomes so vital that surface dis- 
putes would materially increase in number and be contested far 
more bitterly than in the past. The inevitable result would be to 
create an additional crop of surface litigation to take the place 
of extralateral litigation. 

Practically all of the states of the West have also l^slated 
on the subject of mining law, supplementing the mining laws of 
Congress. Most of these have embodied in their legislation the 
extralateral provisions of the federal statutes. While action by 
G)ngress abolishing the extralateral right would doubtless have 
the effect of rendering these state statutes on the same subject in- 
operative, yet it would become necessary for each state to wipe 
this legislation off its statute books and harmonize its laws 
with the enactments Q)ngress might see fit to substitute therefor. 

The writer does not pretend to assert that these obstacles are 
insuperable, but calls attention to them for the purpose of showing 
that the repeal of the extralateral law is going to be attended by 
far-reaching results. No attempt has been made to exhaust the 
field of objectionable consequences which will flow from such a 



MLindley on Mines, §568. 



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EXTRALATERAL RIGHTS 317 

repeal and as a matter of fact many serious results would only 
become apparent years after the experiment had been put in 
operation. 

Unavoidable and expensive litigation is admittedly a valid ob- 
jection to the continued existence of the extralateral right. But 
we are not confronted by the simple situation which existed prior 
to the adoption of this right to follow the vein into the depth. 
If we could erase the slate and start anew in the light of our 
present day experience, there would be little room for argument 
that the vertical boundary system, while opposed to the natural 
economics of mining, would obviate much expensive litigation 
and on the whole be desirable. But, unfortunately, we can not 
start anew and we are confronted with the practical situation 
that during the past sixty-seven years there have been thousands 
upon thousands of claims located and patented under the law 
granting extralateral privileges with which we must reckon, as 
it is inconceivable that any rights already vested will be destroyed. 

To have two fundamentally opposed systems of mining law 
operating side by side, one based on the principle of severance 
of mineral from the surface and the other based on surface 
ownership carrying with it the right to ever3rthing situated ver- 
tically beneath, would not tend to a simplification of our mining 
laws nor to their ready understanding by those who would avail 
themselves of their benefits, but would inevitably add an increasing 
number of problems to be litigated in the courts.** 

The fact that the primary questions involved in the interpre- 
tation of the extralateral feature of the Mining Act have largely 
been set at rest by the Supreme Court of the United States is 
reflected by the diminishing number of cases involving extralateral 
rights which are presented to the courts each year, and this in 
spite of the continually increasing number of locations and oper- 
ating mines where such questions might be raised. There are 
questions of extralateral right law still undetermined but these 
are becoming fewer in number each year. Most of the important 



«* **The apex theory of tracing title to a lode has led to much litigation 
and dispute and ought not to have become the law, but it is so fixed and 
understood now that the benefit to be gained by a change is altogether 
outweighed by the inconvenience that would attend the introduction of a 
new system." From President Taffs Speech at Conservation Congress, 
Minneapolis, Sept. 5th, 1910. 



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3i8 CALIFORNIA LAW REVIEW 

questions have been adjudicated. Because there are still some 
problems awaiting determination is not a valid reason for wiping 
out the great framework of judicial construction of the apex 
statute which has been built up during half a century.** Time 
will serve to eliminate virtually all of the questions of strict law 
which may arise over this subject but we cannot, of course, 
eliminate the questions of fact as to continuity and identity of vein 
occurrences which arise wherever complex vein conditions exist. 
Such extralateral questions will continue to arise and the great 
expense incident to the trial of these problems is admittedly a 
grave objection to the continued operation of the law of apex. 
But these cases will arise in any event in connection with rights 
already vested and a repeal of existing law will not eliminate 
any extralateral rights which came into existence theretofore. 

Many of those who favor revision of our mining laws seem 
to have the idea that if a particular law gives rise to litigation 
all that has to be done to remedy the situation is to amend the 
law or substitute a new law in its place and that litigation will 
cease automatically if the proper kind of a substitute law is 
devised. Unfortunately, such an ideal result is seldom if ever 
attained in actual experience. Until the expression of ideas by 
means of language has been reduced to an exact science and all 
people think in the same terms, it is not possible for radical leg- 
islation to be enacted which will not in its turn have to run the 
gauntlet of attack based upon every conceivable ground that human 
ingenuity can devise." The disposition of public mineral lands 
presents a complex problem and the dovetailing of such a law 
in with all the other public land laws is no easy task. In in- 
numerable instances a new law must come in conflict with rights 
that have vested under the older mining law which it will sup- 
plant and we are certain to have a new crop of litigation that will 



*5 "The large number and wide range of the decisions show that the 
value of mining laws depends on their status as established by the 

courts " Annual Report of Director of the Bureau of Mines (1915), 

p. 35. 

*" "They [the elements of decision contained in the mining statute] are 
simple enough in expression but the contests of interest and ingenuity, 
induced or justified by physical conditions, have given rise to much litiga- 
tion, and quite a body of jurisprudence has been erected in the exposition 
of the rights conferred by the statute. The number and fullness of the cases 
spare us much discussion." Stewart Mining Co. vs. Ontario Mining Co. 
237 U. S. 350, 357-8. 



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EXTRALATERAL RIGHTS 3^9 

unquestionably persist for years. The vital question is whether 
the benefits to be derived from a change in the law will eventually 
outweigh the hardships and uncertainties of this unavoidable 
period of statutory interpretation and readjustment. 

A Suggested Remedy. 

As a matter of fact the situation can be met in another way 
and valid criticism based on the expense of extralateral trials 
overcome to a large extent by reform in the present objectionable 
methods of handling such cases.*^ It is admitted that the reform 
would have to be radical but it is worth considering, for the extra- 
lateral right is bound to be the subject of adjudication in the 
future, as in the past, at least, as far as existing vested rights are 
concerned. 

In each state there should be a provision added to its laws 
whereby a judge, specially qualified to try extralateral cases, could 
be called in to sit where such rights are involved. To the average 
judge an extralateral suit is like so much Greek and a large por- 
tion of the trial is taken up with educating the court on the 
elementary principles involved. Most of the mining laws of other 
cotmtries recognize the fact that mining cases involve technical 
problems that can not be satisfactorily and intelligently adjudi- 
cated by the regular courts and, consequently, in practically all 
foreign countries a special tribunal is established to try mining 
cases.'® In some countries jurors, even, are required to be ex- 
perienced in mining. 

Another objectionable feature which can be readily improved, 
is the present method of employment by each side of an army 
of experts.** Practically all extralateral cases resolve themselves, 



•^As Charles Shamel says: "The fault lies not with the apex law, but 
with the existing instruments and methods of legal procedure." Trans- 
actions of American Institute of Mining Engineers, Vol. XLVIII, p. 34. 

8* Any one who was familiar with the trial of mining cases in the 
federal courts before judges like Hawley or Hallett, who thoroughly un- 
derstood these technical mining problems, will appreciate the great saving 
of time and expense which would result from the trial of technical cases 
by a specially qualified judge. 

8»The employment of experts in extralateral litigation is not an un- 
mitigated evil. In many cases ore bodies of considerable value have been 
encotmtered as a direct result of litigation work or suggestions of the ex- 
perts and in many mines the geological conditions are slighted and but 
poorly understood until an extralateral suit is instituted and then the first 
scientific information of value is obtained concerning a mining camp. 



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320 CALIFORNIA LAW REVIEW 

sooner or later, into a battle between opposing experts. This 
results in great expense as well as confusing exaggeration of 
structural details of minor importance. In a great majority of 
cases justice could be as readily obtained by a board of experts, 
one to be selected by each side and a third by the judge of the 
court, the expense to be shared equally by each party. These ex- 
perts could examine the properties involved and make a report 
on the geological occurrences. They would agree on most facts, 
and where there was a difference of opinion litigation work could 
be ordered to further develop the points of difference. This plan 
would eliminate much of the expense and time consumed in such 
trials. The court would accept the facts agreed on as proven 
and confine the trial to disputed issues. This plan or some other 
framed along similar lines would do much to remove the stigma 
of an excess of expensive litigation to which the extralateral right 
is now properly subject. It would tend to minimize the existing 
evil which will still continue to abide with us in the case of all 
existing claims and would obviate a plunge into untried dangers 
and hazards which are bound to follow a radical change in our 
present law. 

If it is litigation we wish to avoid, then why not also take 
up the question of compelling all locations in the future to con- 
form to legal subdivisions.*® By requiring lode claims to be 
located in conformity to public land surveys as is now required 
in the case of placers and also by registering all locations in the 
land offices, it will readily be seen that a vast amount of litiga- 
tion arising by reason of conflicting surface rights would be elimi- 
nated. An amendment of the mining law as suggested would 
eliminate ten-fold as many cases as would be eliminated by 
abolishing the extralateral right. But by each of these remedies 
the advantage of economic operation of the ore deposit as a 
geological unit would be sacrificed. The vein on its dip into the 
earth has nothing in common with the surface and to parcel it 
out by surface area and vertical boundaries is a structural misfit 
and so would be the forcing of lode locations into rectangular 
surface areas conforming to the public land surveys. Such re- 
forms are ideal from the standpoint of minimized litigation but 



*®This is not a novel suggestion. See Transactions of American Insti- 
tute of Mining Engineers, Vol. XL VIII, p. 422. 



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EXTRALATERAL RIGHTS 321 

intensely impractical from the standpoint of the most economic 
mining of the ore deposits. 

Most Countries Recognize Severance of Minerals From 

Surface. 

One vital point must not be overlooked in this discussion. 
Most of the mining laws of other countries recognize severance 
from the surface itself of minerals lying underneath the surface.*^ 
The owner of the surface does not usually own the minerals lying 
in depth beneath his surface but a separate property exists in 
these tmderlying minerals which the state may grant to another 
person. As a result there is no serious conflict between the sur- 
face owner and the individual who is entitled to work the mineral 
deposits beneath the surface. The law of ownership of lands 
acquired on the public domain of the United States, on the con- 
trary, only recognizes such severance to a limited extent. 

Recent legislation by Congress does permit agricultural entry 
of lands valuable for coal, oil, gas, phosphates, nitrates, potash 
and other non-metallic minerals." "Known lodes" are also ex- 
cepted from placers" and "known mines" from townsites.** 

The agricultural patentee is further safe-guarded in this coun- 
try by a statute of limitations, which provides 

"that suits to vacate and annul patents thereafter issued shall 
only be brought within six years after the date of issuance 
of the patent." 
Not only does this statute of limitations operate to cut off a min- 
ing claimant's opportunity to acquire mineral already known to 
exist in patented agricultural ground but rulings of the Supreme 
Court of the United States and of various state courts have thrown 
additional protection around agricultural claimants so that after 
their bona fide entry on land tmder non-mineral public land laws 



*^ Severance of underlying minerals from the surface and their segre- 
gation into distinct titles is characteristic of the laws of France, Belgium, 
Holland, Spain, Austria, Germany, portions of Italy, Greece, Norway, 
Sweden, portions of Russia, Canada, Australia, Japan, and most of Spanish 
America. 

** See 3 California Law Review, p. 288, n. 45, in article entitled, "The 
New Public Land Policy." 

*«U. S. Rev. Stats., §2333. 

«* U. S. Rev. Stats., § 2392. 

**As to patents theretofore issued, the period of limitation was five 
years after the passage of the Act. Act of Congress approved March 3, 
1891, 26 Stats, at L. 1093, § 8. See Lindley on Mines, § 784. 



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322 CALIFORNIA LAW REVIEW 

has been made, it is difficult for a mineral claimant to make a 
valid adverse entry on the same land.** 

In other words, when the United States grants non-mineral 
title to land it is usually in practical effect an outright grant of 
all that the land contains. There is no dual ownership contem- 
plated except in the few limited cases noted. Anyone who recog- 
nizes these advantages which the agricultural claimant now 
possesses in this country as against those desiring to acquire the 
mineral existing in the same lands, will appreciate to some degree, 
at least, the hardship which is going to result to the miner if the 
extralateral right is abolished without the simultaneous enact- 
ment of legislation designed to offset this difficulty. The in- 
evitable result of an outright elimination of the extralateral rig^t 
will be to feed all existing agricultural patents which have veins 
dipping beneath them with all such extralateral segments of such 
veins situated vertically beneath these agricultural patented lands, 
since such segments will fall by gravity into and become merged 
with the ownership of the overlying surface lands.*^ 

Some may argue that this is a desirable result. It is doubtful 
whether the mine operator and prospector will enthuse over such 
an outcome. To allow minerals to pass into agricultural owner- 
ship is not going to facilitate the extraction of minerals from the 
soil. These two fundamental industries have many points of 
difference. The destruction of soil by actual removal thereof or 
deposit thereon of tailings, necessary in so many instances in 
actual mining operations, and the destruction of vegetation result- 
ing from reduction and smelting processes has made the average 
agriculturist apprehensive and difficult to persuade that mining 
in his immediate vicinity is always for his best interests. Neither 
has the agriculturist any adequate conception of the true value 
of a mine and is inclined to place on the mineral existing within 
his ground an exorbitant and exaggerated price based on gross 
output. He does not take into consideration the vicissitudes of 



*«See Lindley on Mines, §§206-208. 77. 

*7 While there is a difference of opinion on the subject, the weight 
of reason and views of the text writers support the contention that a miner 
who locates the apex of a vein within ground that is open to location, even 
though his location is made later in time than the date of the patent to 
agricultural land which overlies the dip of the vein, may follow his vein 
extralaterally underneath the prior patented agricultural surface. Lindley 
on Mines, §612. 



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EXTRALATERAL RIGHTS 323 

mining operations and the difficulties which must be overcome 
before a mine can be put on a paying basis. The abolition of 
the extralateral right will further fortify the farmer in this posi- 
tion and make him increasingly hard to deal with. With the extra- 
lateral right in existence, the agricultural surface owner can now 
be usually induced, for a small consideration, to part with any 
claim he may assert to underlying mineral rights, for he is aware 
of the right of the lawful apex proprietor to follow the vein and 
penetrate beneath his land without his consent. It will be quite 
a different matter to deal with him when he realizes that he has 
become the actual and tmdisputed owner of the vein situated 
vertically beneath his surface. 

The Extralateral Right is Based on the Principle of 

Severance. 

The main exception in the public land law of the United States 
existing today which takes the place of severance in other coun- 
tries, is the right of the owner of a valid lode location embracing 
the apex of a vein to follow the vein extralaterally underneath 
adjacent surface. In other words, the extralateral feature of 
American mining law operates to segregate mineral deposits in 
the nature of lodes or veins from the surface land overlying the 
dip of such veins or lodes.^^ The practical result of abolishing 
the right to follow a vein extralaterally and confining the locator 
to his vertical boundaries and of also abolishing the discovery 
requirement would be that agricultural claimants could readily 
file on and enter upon land overlying the dip of the vein. Under 
our existing land laws there is no way to prevent such action 
tmless the Land Department can be persuaded to withdraw the 
land from agricultural entry pending its classification which would 
be manifestly impossible in every instance, as well as interfering 
with bona fide acquisition of agricultural titles. With the extra- 
lateral law in force, the locator can locate a claim embracing the 
apex of the vein and make a valid discovery on the portion of 



*« "The Act of 1866 was in effect a proclamation severing veins and 
lodes of the character specified from the body of the public domain. It 
was the announcement of a governmental policy, whereby ledges within 
the earth were to be considered as distinct entities, and to be dealt with 
as such in administering the public land system. This policy has never 
been entirely changed. In the main it is as much a part of /he existing 
system as it was of the one which it succeeded." Lindley on Mines, § 568. 



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324 CALIFORNIA LAW REVIEW 

the vein which is nearest to the surface. This serves to carve out 
the vein on its dip beneath agricultural land and it is usually 
inunaterial whether the agricultural claimant acquires title to the 
surface overlying the dip or not. Abolish the extralateral right 
and it becomes difficult and in many cases impossible to discover 
mineral within the vertical boundaries of claims overlying the dip 
of the vein. Agricultural claimants might be first on the ground 
and under the land laws as now interpreted they could prevent 
prospective locators from coming on the grotmd for the purpose 
of making a discovery. As already pointed out, discoveries per- 
fected by sinking shafts to encounter the vein in depth, even if 
made without opposition, become economically wasteful and un- 
desirable. 

The Only Logical Alternative is to Sever Minerals 
From Surface. 

After giving this subject serious consideration for a number 
of years it is the writer's deliberate opinion that, if any change 
is to be made in existing law and if conditions are to be im- 
proved rather than made worse, instead of abolishing the extra- 
lateral right principle, it should be carried even further by amend- 
ment of our public land laws providing for the severance from 
surface lands of all minerals except superficial deposits. Surface 
lands could be disposed of under existing laws providing for the 
acquisition of agricultural and other non-mineral titles except that 
the mineral should be permanently reserved from such surface 
grants. As the law now stands, and as has already been noted, 
only minerals known to exist at the date of the agricultural grant 
are reserved and even such minerals become the property of the 
surface proprietor by virtue of the existing statute of limitations 
and also the additional protection thrown by the courts about a 
surface proprietor in possession. 

By reserving minerals from agricultural lands and allowing 
the miner the right of entry for purposes of prospecting under re- 
strictions with the added requirement that the surface proprietor 
be compensated for damage, the interests of both the miner and 
the agriculturist would be conserved. In all the important min- 
ing countries of the world this s^regation has taken place and 
this is the reason why in such countries the extralateral principle 
is not essential, whereas, in the United States, without such segre- 



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EXTRALATERAL RIGHTS 325 

gation or severance of minerals from the surface, the extralateral 
right has a most powerful additional reason for existence. With 
severance of minerals and segregation of agricultural and mineral 
interests, the element of discovery also, now so vital in the mining 
law of the United States, would assume secondary importance. 
Discovery instead of being of prime importance, as of necessity 
it must be under existing law where no segregation of minerals 
from the surface exists, could be made a secondary requisite, 
only required after the mineral locator had plenty of time in 
which to make a discovery, taking into consideration the difficulty 
of so doing in particular cases. If the principle of severance 
is incorporated in a revised public land law, a vertical boundary 
system for the acquisition of mineral lands could be simultaneously 
adopted without resulting in great hardship to the miner, for the 
agricultural surface claimant could no longer claim the underlying 
minerals. The surface perimeter within which the miner could 
work should be so adjusted as to give him as much opportunity 
as possible to mine in depth on the vein. This would in effect 
be an adoption of the French system of mining law. However, a 
radical change of this sort would unquestionably result in in- 
creased supervision of mining operations by the Federal Govern- 
ment and conversely a material sacrifice of individual control over 
such operations.** It might even result in permanent reservation 
by the Federal Government of all minerals, both metalliferous as 
well as non-metalliferous, and their disposition under a leasing 
system. This would be in line with the new public land policy 
as evidenced by recent acts of Congress and of the executive 
branch of the government which have been upheld by the United 
States Supreme Court.'® 

Whether such segregation is at this late day practical is a 
question that can only be determined after it has been thoroughly 
considered from every standpoint. As already noted, the Federal 
Government has provided for such severance in the case of lands 
containing coal, oil, gas, phosphate and similar minerals and it 
may be that the experience derived from the practical develop- 
ment of such lands will aid in determining this serious problem 
when applied to the metalliferous minerals. 

^•This is conspicuous in the administration of the French mining law. 
4 California Law Review, pp. 373-374. 

^3 California Law Review, pp. 269-291. 



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326 CALIFORNIA LAW REVIEW 

The suggestion that severance of minerals from the surface 
will solve many of the difficulties standing in the way of the out- 
right abolition of the extralateral right is not new. The logic 
of the situation has caused others to advocate the change.*^ 

The severance of surface title from the underground minerals 
would also discourage speculators and blackmailers who now 
fraudulently seek to acquire title to surface lands undei agricul- 
tural laws in order to levy tribute upon the bona fide mining 
operator. There are many problems that would have to be care- 
fully considered if such a material change were made in our 



** "The one great thing which would do away with all of our troubles 
on the discovery question, and also a lot of other mining law troubles, is 

the divorce of surface and mineral titles The use of the surface 

and the extraction of minerals do not, except to a limited extent, naturally 
belong together, and any law which persists in keeping the two inseparable 
must be full of injustice and trouble brooding." Victor G. Hills in Trans- 
actions of American Institute of Mining Engineers, (Dec. 1916), p. 2202. 

An able paper entitled "The Segregation and Classification of the 
Natural Resources of the Public Domain," by Frederick F. Sharpless ap- 
pears in the Transactions of the American Institute of Mining Engineers, 
Vol. XX, pp. 386-400. The author points out the many advantages of 
segregating the surface from the mineral title and calls attention to the 
fact that: "In nearly all of the Provinces of Canada, there are three dis- 
tinct rights in every parcel of land — timber rights, mineral rights and 

agricultural rights In Australia, the segregation of surface from 

mineral rights has been the custom in most of the colonies for many 

years While segregation of surface from mineral rights would not 

cure all existing difficulties connected with our present mining laws, it 
would, because of the very different nature of these rights, simplify the 
application of remedies." 

After the main report of the Public Land Commission had been sub- 
mitted to Coniarrcss, Maj. J. W. Powell, one of the Commission, qualified 
his approval of the report by adding a provision in the case of certain 
agricultural lands classified by the commission as pasturage lands, that 
"all subterranean mining property and rights for mining purposes, are 
hereby severed from the surface property," and that in the case of all 
such patents issued, the same reservation should be inserted and the 
property "shall be servient to the easements necessary for discovering 
and working mines therein." He also urged that in the case of mineral 
lands every patent should have inserted the following clause: "Except and 
excluding from these presents all surface property rights, provided that 
there shall be dominant in the property conveyed in this patent the ease- 
ments on the surface property necessary for discovering and working 
mines therein." 

The Commission had recommended that lands more valuable for min- 
eral than agricultural purposes should be classified as mineral lands and 
subject to sale and entry only under mineral laws. Major Powell argued 
that since one-half of the mineral lands in the western United States were 
forest lands from which, under the Commission's recommendation, the 
timber alone was to be sold to timber claimants, thus leaving such lands 
open to mineral exploration, and since the other half of the mineral lands 
were largely pasturage lands, that this severance recommended by him 
would quite thoroughly protect the mining industry. 



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EXTRALATERAL RIGHTS 327 

mining law, but the experience of other countries which have 
successfully operated their mines under laws based on this prin- 
ciple would afford great assistance in framing such legislation.*' 

The complex problem here presented is surrounded with pro- 
found difficulties and no matter in which direction we turn, we 
are confronted with unknown quantities and tmtried conditions. 
Any critic who ventures to prophesy with any degree of assurance 
that, by abolishing the extralateral right and also the time-honored 
principle of discovery, the milleniimi in mining operations will 
be attained, has closed his eyes to these uncertainties and is acting 
on blind faith. The writer does not claim to have received any 
information from an inspired source and is free to confess that 
the more the situation is studied the graver its uncertainties be- 
come. It will take a master mind to hew the way and devise 
a substitute law which will work in harmony with our other land 
laws and which will not bring chaos in its wake. 

A commission composed of the best talent available has been 
proposed but legislation to bring about this result failed at the 
last session of Congress. It is certain that if revision is desirable 
it should not take place piece-meal and without due consideration 
of its effect on other land laws.*' 

«> "An enlightened public sentiment concerning our mineral land policies 
can be formed only in the light that is afforded by knowledge of the kin- 
dred systems of the progressive peoples of the earth." United States Sen- 
ator Thomas J. Walsh, Transactions of American Institute of Mining En- 
gineers, Vol. XLVIII, p. 411. 

*8 The provisions of the proposed Revision Commission Bill were ex- 
plained at length in Transactions of the American Institute of Mining 
Engineers, Vol. XLVIII, pp. 405-411. Unquestionably, the plan there urged 
of general revision rather than "tinkering or patchwork revision" cannot 
be successfully controverted. Writing of the present laws, Edmund H. 
Kirby there says (p. 406) :".... Their various parts are so interdepen- 
dent that it is practically impossible to correct individual faults without 
revising the laws as a whole." 

There were several bills introduced in the 64th Congress having for 
their object the revision of the mining law. One in particular (Senate 42) 
provided for an outright repeal of the extralateral right without any at- 
tempt to revise other features of the law so as to minimize the hardships 
that would inevitably result. The opinion of the Department of the In- 
terior was requested and Secretary Lane on Jan. 21, 1916, wrote the Chair- 
man of the Senate Committee on Public Lands as follows: "It is certainly 
undesirable to attempt revision by partial and piecemeal methods. The 
entire mining field should be surveyed and the existing mining statutes 
revised only after thorough examination in all particulars. This can be 
best accomplished by a commission such as is contemplated. In view of the 
probable creation of such a commission, whose duties will include con- 
sideration of the very matters included in the present bill. Senate 42, I 
deem it inadvisable to make any comment upon the merits of the proposed 



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328 CALIFORNIA LAW REVIEW 

The writer feels justified in asserting that the following sum- 
marized statements are amply supported by the facts presented 
in the course of this discussion: 

1. The extralateral right principle has existed in one form 
or another in many of the mining laws of the world but in nearly 
all instances this feature has been eventually abolished because 
of the litigation and uncertainty which it produced. 

2. The extralateral right was adopted as a part of the mining 
law of the West by the pioneer miners when they made their 
earliest quartz locations in 1850 and 1851 and it became the al- 
most universal custom and usage of the miners throughout the 
mining districts to exercise "dip rights/*"* 



measure, and would suggest that the matters there involved be left to the 
careful study and consideration of such commission. I accordingly recom- 
mend at this time that Senate 42 be not enacted." 

^^ Dr. Rossiter W. Raymond, who was intimately associated with the de- 
velopment of the mining law of the public domain, has contributed many 
learned and illuminating articles on the general subject and particularly on 
"The Law of the Apex" (Transiactions American Institute of Mining En- 
gineers, Vol. XII, p. 387) which descriptive phrase as well as the term 
"extralateral," he introduced into the literature of American mining law. 
He calls attention to the fact that "the term 'extralateral' could not have 
been applied under the Act of 1866," for the reason that the locator was 
entitled to a certain length of vein without regard to any width of surface 
ground. (Transactions of American Institute of Mining Engineers, Vol. 
XL VIII, p. 302). In other words, the miner's surface claim was not re- 
stricted under the Act of 1866 by lateral boundaries and hence extralateral 
pursuit of the vein would necessarily be a misnomer. The "dip right" as 
applied to this early appearance of the right to follow down inddSnitely 
on the vein is technically a more accurate use of terms. ("The *dip rig^? 
of the early miner was the forerunner of the modem extralateral right" 
Lindley on Mines, §566). However, this differentiation of terms is more 
or less academic, for as a matter of fact, most of the early local rules 
and customs of the mining districts (See 4 California Law Review, pp. 
448, 449, n., p. 47) and many of the territorial legislatures (See id., pp. 450- 
452) prescribed a definite lateral surface boundary limitation for lode 
claims and even in those districts where no such limitation was imposed, 
the location and occupation of all the available surface territory in the 
vicinity of important mines necessarily resulted in a definite lateral surface 
limitation for each lode claim and under such circumstances it is not a 
misuse of words to apply the term "extralateral" to the right that the 
miner exercised even in the earliest days. The same may be said of the 
use of the phrase "the law of the apex." Dr. Raymond points out (Trans- 
actions of American Institute of Mining and Engineering, Vol. XL VIII, 
p. 302; also Vol. XLIV, p. 61) that the word "apex" first appeared in the 
Act of 1872. As a matter of fact the apex or upper terminal edge of the 
vein was just as essential and its possession constituted the prime basis 
of the miner^s right to follow the vein down on its dip in the early 50^s 
and under the Act of 1866 as under the Act of 1872, which expressly 
called it by name. All of the extralateral cases decided under the Act of 
1866 bear out this statement. 

No attempt has been made in the course of this discussion to keep 



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EXTRALATERAL RIGHTS 329 

3. The legislatures of practically all of the western states and 
territories had by statute declared the extralateral right to be the 
mining law in force in their respective jurisdictions when Congress 
passed the Act of 1866 which adopted and crystallized this miner's 
law without material alteration. 

4. The Act of Congress of 1872, which is still in force, 
further codified and confirmed this miner-made law, changing it 
only in minor respects and leaving the fundamental principle of 
extralateral pursuit substantially as the miners had originally 
adopted it. 

5. The law of discovery is not only handed down to us by 
the pioneer miners of the West but is also a heritage of cen- 
turies of mining experience throughout the world. 

6. To abolish the extralateral right will result in forcing the 
abolition of the principle of discovery as applied to lode mines 
as well, and these are two of the most vital features of our 
mining law. 

7. With the extralateral right repealed, the only important 
feature of our law which has the effect of severing the under- 
lying mineral from the surface will have been eliminated and with 
the principle of discovery eradicated, the simple and practical 
test, now thoroughly understood, will no longer be available to 
the prospector and locator, and unless some substitute is fur- 
nished he will find himself at the mercy of the agricultural claimant 
or the unscrupulous speculator. 

8. The alternative suggested of leaving classification of lands 
to government agents will shift the initiative in determining min- 
eral character from the individual locator, as it exists at present, 
and will be a long step in the direction of complete government 
control of metalliferous mining. 

9. The logical solution based on world experience is to sever 
all mineral except superficial deposits from the surface and dis- 
pose of the minerals and the surface separately. 

10. Whether a workable system based on this principle of 
severance can be devised at this late day which will not result 



this refinement of terms in mind for it would serve no practical purpose 
and would merely result in confusion. The expressions "extralateral right,** 
"law of apex," and "dip right" have been used to convey the same general 
idea of a ri^t to follow a certain length of vein on its dip into the earth 
indefinitely. 



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330 CALIFORNIA LAW REVIEW 

in producing greater confusion and more litigation by reason of 
new and untried problems and conflict with inntmierable rights 
vested under the former system, is a question which would tax 
the wisdom of Solomon. 

II. In any event, revision, if attempted, must be general and 
not piecemeal and should be enacted only as the result of the most 
careful deliberation by a conmiission composed of the best talent 
available.** 

Wm, E. Colby. 

Berkeley, California. 



<^*0n April 4, 1917, Senator Smoot introduced in the United States 
Senate (S. 104) a bill "To provide for a commission to codify and suggest 
amendments to the general mining laws," with power "to hold public hear- 
ings in the principal mining centers in the Western United States and 
Alaska," etc., and to "consider the laws and experience of other countries 
with respect to disposition and development of mines and minerals" and 
"within one year" to submit to the President a report and "a tentative code 
of mineral laws." 



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California Law Review 

Pablithed by the Faculty and Students tf the School tf Jurisprudence tf the 
University tf California, and issued Bi-monthly throughout the Year «t^ «t^ «t^ 

SubscripdoQ Price, $2.50 Per Year Single Copies, 50 Cents 

ORRIN K. McMURRAY, Editor-in-Chief 

LLOYD N. HAMILTON. Student Editor-in-Chief 

M. C. LYNCH, Business Manager 

S. F. HOLLINS, Student Business Manager 

ROSAMOND PARMA. Secretary 



Faculty Board of Editors 
A. M. KIDD 
WM. CAREY JONES A. P. MATTHEW 

WM. E. COLBY M. C. LYNCH 

M. E. HARRISON J. U. CALKINS, Jr. 

F. S. PHILBRICK A. T. WRIGHT 



Student Board of Editors 

JACOB GOLDBERG. W. A. SITTON. 
Associate Editor Associate Editor 

E. W.Davis ?;£;J^r"p^^,'L 

p 17 HftVT Esther B. Phillips 

H A TnMPQ Carol A. Rehfisch 

?L kio^ J- B- Whitton 

J . L. ISJJOWLES Frances H. Wilson 



BAR ASSOCIATION NOTES. 

THE following officers were elected at the meeting of tfie 
Los Angeles Bar Association on February 2y, 19 17, to serve 
for one year : President, Oscar C. Mueller ; Senior Vice-President, 
J. W. McKinley; Junior Vice-President, Edgar W. Camp; Secre- 
tary, R. H. F. Variel, Jr. ; Treasurer, T. W. Robinson. The office 
of the Secretary is 687-691 I. W. Hellman Building, Los Angeles. 
The San Francisco Bar Association on March 15, 1917, ten- 
dered a banquet to its retiring President, Jesse W. Lilienthal, which 
was largely attended by members of the bench and bar. President 



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332 CALIFORNIA LAW REVIEW 

Jeremiah F. Sullivan has appointed a committee for the pur- 
pose of devising plans for the development of a stronger spirit of 
fraternity at the bar. 

At the annual meeting of the Oakland Bar Association, held 
on April 7, 191 7, the name of the organization was changed to 
Alameda County Bar Association. The following were elected 
officers for the ensuing year: President, M. C. Chapman; Vice- 
president, Earl Warren; Secretary, Earl W. White; Treasurer, 
A. J. Woolsey. 



ANNUAL CONFERENCE OF CHARITIES AND 
CORRECTIONS. 

THE forty-fourth Annual Conference of Charities and Cor- 
rections will be held at Pittsburg, Pa., June 6-13, 1917. 
Such matters as social insurance, juvenile courts, illegitimacy, 
regulation of charities, the treatment of crime and criminals, 
domestic courts, all of which are included in the program, are of 
living interest in the modem development of the law. The ad- 
dress of the General Secretary of the Conference, William T. 
Cross, is City Club Building, Chicago, 111. 



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Comment on Recent Cases 



Adverse Possession: Payment of Taxes: Double Pay- 
ment. — ^A person claiming title by adverse possession in Cali- 
fornia must show that he has paid all the taxes assessed during 
the statutory period.^ But may the payment of taxes by the ad- 
verse possessor be subsequent to payment of the same taxes by 
the holder of the legal title? The California decisions on this 
matter are not entirely consistent. 

The question first arose in 1893 in Cavanaugh v. Jackson.' 
In this case, it was held in a decision of the Supreme Court in 
department that the adverse possessor fulfilled all conditions of 
the statute* by having the land assessed to him and paying the 
taxes thereon, and that the number of times the taxes thereon 
were paid by others was immaterial. The court declined to 
follow an Illinois case taking the opposite view,* claiming that 
to do so would cause a scramble to tiie tax-collector's office be- 
tween the adverse claimant and the legal owner. Justice Harri- 
son, however, though concurring in the result, declared that the 
taxes having once been paid, the burden was removed, so that 
there was no longer any tax to be paid; and, as a result, no 
right could be acquired by the adverse possessor if he paid the 
taxes subsequent to payment by the holder of the legal title. Four 
years later in Carpenter v. Lewis" the question again arose in the 
same department and Justice Harrison's view was adopted. 

The question again arose in 1907, and the District Court of 
Appeal after reviewing the two previous decisions of the Supreme 
Court followed Justice Harrison's view.* In 1909 this rule was 
once more approved by the District Court of Appeal.^ During 
the same year, the question was again presented to a department 
of the Supreme Court in Owsley v. Matson.* and after discussing 
Cavanaugh v. Jackson • and Carpenter v. Lewis,^® the court fol- 
lowed the former decision. Two later decisions of the District 



1 1 California Law Review 53. 

«99 Cal. 672, 34 Pac 509. 

«Cal. Code Civ. Proc., §325. 

*Bolden v. Sherman (1882), 101 111. 483. 

• (1897), 119 Cal. 18, 50 Pac. 925. 

•Commercial National Bank v. Schlitz (1907), 6 Cal. App. 174, 91 
Pac. 750. 

TQowner v. De Alvarez (1909). 10 Cal. App. 194, 101 Pac 432. 

• (1909), 156 Cal. 401, 104 Pac. 983. 

• Supra, n. 2. 
*® Supra, n. 5. 



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334 CALIFORNIA LAW REVIEW 

Court of Appeal^^ followed Owsley v. Matson, and in 1916 it was 
approved by a bank decision of the Supreme Court in Cummings 
V. Laughlin" which, however, did not consider the point very 
fully. 

But the District Court of Appeal in the recent decision of 
Van Calbergh v, Easton^^ held that the payment of taxes by the 
adverse possessor after the holder of the legal title had already 
paid them, did not satisfy the statute. The court attempted to 
reconcile its decision with Cummings v. Laughlin** and Owsley 
v. Matson^^ on the ground that those cases involved overlapping 
boundaries, and were for that reason subject to a different rule. 

The arguments presented by the District Court of Appeal, 
however, apply as well to the two cases it attempts to reconcile 
as to the principal case itself. The lien of the tax was removed 
by its payment; and the moment it was paid there was no longer 
a legally assessed tax in existence on the property for that year. 
The payment by the adverse possessor to the tax-collector after 
the holder of the legal title had already paid, could not be a 
payment of taxes, as they had ceased to exist when paid. The 
first payment of the taxes discharged the lien, and the second 
was therefore a mere voluntary payment of no legal effect as 
regards adverse possession. 

If it is not admitted that the first payment of taxes discharges 
the lien in cases of overlapping boundaries, it then must be held 
that the adverse possessor must pay both taxes, not only those 
assessed to him, but those assessed to the legal owner as well. 
The code provides that the adverse possessor must pay all taxes 
levied and assessed on the property,^® and if both are considered 
as valid taxes, both must be paid to comply with the statute. 

The argument that the view of the statute as expressed by the 
principal case will cause a scramble to the tax-collector's office, is, 
as the court pointed out, an argument against the expediency of 
the statute, and not a reason for a diflFerent interpretation thereof. 
The principal case is supported by the weight of authority in 
other states,^^ and it is hoped that the Supreme Court will definitely 

11 Bell V. Germain (1910), 12 Gal. App. 375, 107 Pac 630; People's 
Water Go. v. Lewis (1912), 19 Gal. App. 622, 127 Pac 506. 

" (Oct. 21. 1916), 52 Gal. Dec. 481, 160 Pac. 833. 

" (Feb. 13, 1917), 24 Gal. App. Dec. 320. 

1* Supra, n. 12. 

i» Supra, n. 8. 

i« Supra, n. 3. 

"Morrison v. Kelly (1859), 22 111. 609, 626; Ross v. Goat (1871), 
58 111. 53; Bolden v. Sherman, supra, n. 4; Maher v. Brown (1899), 183 111. 
575, 56 N. E. 181; Clayton v. Feig (1900), 188 111. 603, 59 N. E. 245; Rio 
Grande Western Ry. Go. v. Salt Lake Investment Go. (1909), 35 Utah 528, 
101 Pac. 586, 591 (approving Carpenter v. Lewis, supra, n. 5) ; Cramer v. 
Walker (1913), 23 Idaho 495, 130 Pac. 1002 (approving Carpenter v. 
Lewis), supra, n. 5. Contra, Thomson v. Weisman (1904), 98 Tex. 170, 
82 S. W. 503 (approving Gavanaugh v. Jackson, supra, n. 2). 



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COMMENT ON RECENT CASES 335 

settle this disputed point in line with reason and authority by 
approving the holding of the District Court of Appeal for all 
cases of adverse possession, whether of overlapping boundaries 
or not. 

S. M. A, 



Bankruptcy: Qualified Judgment Against Bankrupt: 
Liability of Surety on Bond to Release Attachment on 
Property of Bankrupt. — ^An adjudication and discharge in bank- 
ruptcy, when pleaded, is an effectual bar to an action against the 
bankrupt, provided the claim upon which the action Is founded is 
one provable in the bankruptcy proceeding.^ To this rule there 
are a few exceptions which are enumerated in the Act.^ The dis- 
charge, however, will not alter "the liability of a person who is a 
co-debtor with, or grantor, or in any manner a surety for a bank- 
rupt."* But what if the surety conditions his liability upon the 
recovery of a judgment against the principal obligor? 

In Tormey v. Miller^ a bond was given to release an attach- 
ment. The liability of the sureties was conditioned upon the 
recovery of a judgment by the plaintiff. Within four months 
after the attachment was so released the defendant was adjudicated 
a bankrupt and was thereafter given his discharge. This discharge 
the bankrupt set up by way of supplemental answer as a bar to 
the action. The District Court of Appeal held that the plaintiff 
was, for the purpose of enforcing the liability of the surety, en- 
titled to a qualified judgment against the defendant with a per- 
petual stay of execution. 

It is well established that where the attachment has been levied 
more than four months prior to the bankruptcy, it is not invali- 
dated by the adjudication,^ and a special judgment may be had 
against the bankrupt in order to enforce the obligation of the 
sureties.* This is obviously correct, for had the attachment 
been continued it would have been unaffected by bankruptcy, and 

1 Williams V. U. S. Fidelity Co. (1915), 236 U. S. 549, 59 L. Ed. 713, 
35 Sup. Ct. Rep. 289; Nelson v. Petterson (1907), 229 111. 240, 82 N. E. 229; 
Wood v. Carr (1903), 115 Ky. 303, 73 S. W. 762; Bankruptcy Act, § 17a, 
30 Stats, at L. 544. 

« Bankruptcy Act, § 17a, subds. 1-4, 30 Stats, at L. 544. 

•Bankruptcy Act, §16a, 30 Stats, at L. 544; Aliendroth v. Van Dolsen 
(1888), 131 U. S. 66, 33 L. Ed. 57, 9 Sup. Ct Rep. 619. 

* (Sept 19, 1916), 23 Cal. App. Dec 429, 160 Pac 858. 

« Globe Bank etc. Co. v. Martin (1915), 236 U. S. 288, 59 L. Ed. 583, 
35 Sup. Ct Rep. 377; Bankruptcy Act, §67, subd. f, 30 Stats, at L. 544. 

•Hill v. Harding (1888), 130 U. S. 699. 32 L. Ed. 1083, 9 Sup. Ct Rep. 
725; Bank of Commerce v. Elliott (1901), 109 Wis. 648, 85 N. W. 417; U. S. 
Wind Engine & Pump Co. v. North Penn Iron Co. (1910), 227 Pa, St 262, 
75 Atl. 1094; Smith v. Lacey (1905), 86 Miss. 295, 38 So. 311; Rosenthal v. 
Nove (1900), 175 Mass. 559, 56 N. E. 884; Holladay v. Hare (1886), 69 
Cal. 515, 11 Pac 28. 



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336 CALIFORNIA LAW REVIEW 

the bond having taken its place should be similarly unaffected. 
Where, however, the attachment is levied within four months 
prior to the filing of the petition in bankruptcy, the attachment is 
automatically rendered void by the adjudication. Should not there- 
fore the bond which takes iht place of the attachment be simi- 
larly rendered void? 

Many federal and the majority of the state courts so hold, and 
the view is supported by strong considerations.^ The purpose of 
an attachment bond is to release the attached property, which 
property is to be returned in the event of a judgment against the 
defendants. What is sought to be gained by the attachment bond 
is security equal in value to the lien on the attached property. 
If that lien through subsequent bankruptcy is voided and ren- 
dered valueless, should not the attachment bond also fall? 

In California® a different rule obtains, as is evidenced by the 
principal case* holding it immaterial that the attachment lien was 
created within four months prior to the bankruptcy proceedings. 
This rule is based on the argument that the attachment having 
been dissolved before the bankruptcy proceedings were begun, 
there was no attachment upon which the bankruptcy proceedings 
could operate, and the attachment bond being supported by a good 
consideration, is unaffected by the adjudication of bankruptcy and 
is therefore binding upon the sureties. 

It may be worthy of note that the court in its opinion cited 
section 67c of the Bankruptcy Act, instead of section 67U and 
was perhaps influenced in its decision by this section. 

A. L D. 

Constitutional Law: Actions to Determine Title: No- 
tice. — In ordinary actions notice and an opportunity to be heard 
are essential to due process of law within the meaning of the con- 
stitutional provision, "nor shall any State deprive any person of 
property, without due process of law."^ But there are different 
forms of notice, and such forms are of varying degrees of ef- 
fectiveness. Notice may be actual or constructive; constructive 

^Collier, Bankruptcy (5th cd.), pp. 199, 200; Brandenburg, Bankruptcy, 
§415; Klipstein & Co. v. Allen-Miles Co. (1905), 136 Fed. 385; Stull v. 
Beddeo (1907), 78 Neb. 119, 112 N. W. 315; Crook Horner Co. v. Gilpin 
(1910), 112 Md. 1, 75 Atl. 1049; Windisch-Mulhauser Brewing Co. v. Simms 
(1911), 129 La. 134, 55 So. 739. 

8 Rosenthal v. Perkins (1898). 123 Cal. 240, 55 Pac. 804; S. F. Sulphur 
Co. V. Aetna Indem. Co. (1909), 11 Cal. App. 695, 106 Pac 111; cf. also 
McCombs V. Allen (1880), 82 N. Y. 114; King v. Will J. Block Amusement 
Co. (1908), 126 App. Div. 48, 111 N. Y. Supp. 102. 

• Supra, n. 4. 

lU. S. Const., Amend. XIV; Ballard v. Hunter (1907), 204 U. S. 241, 
51 L. Ed. 461, 27 Sup. Ct. Rep. 261; Ochoa v. Hernandez y Morales (1913), 
230 U. S. 139. 57 L. Ed. 1427, 33 Sup. Ct. Rep. 1033; Simon v. Craft (1901). 
182 U. S. 427, 45 L. Ed. 1165, 21 Sup. Ct Rep. 836. 



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COMMENT ON RECENT CASES 337 

notice may arise from such matters as attachment or adverse pos- 
session of property, publication and recordation. 

In actions to determine title the sufficiency of any given form 
of notice depends upon two considerations: on the one hand, the 
due process clause was not intended to hamper the state unduly 
in its determination of the title to property within its jurisdiction;* 
on the other hand, the fundamental principles of justice embodied 
in this clause require that the property owner be given as much 
protection as is consistent with the state's being able to determine 
property titles with reasonable facility. It would seem, therefore, 
that the most effective form of notice practicable should be em- 
ployed, but in O'Neil v. Northern Colorado Irrigation Co.^ the 
United States Supreme Court apparently takes the position that 
the notice which a property owner receives from the mere record- 
ing of a judgment is sufficient under the due process clause,, ir- 
respective of whether more effective forms of notice were readily 
available. This case arose in Colorado. It was an action to de- 
termine whether the plaintiff's water right, having a priority sub- 
sequent to January i8, 1879, was prior to a water right belonging 
to the defendant. The defendant claimed that a decision which 
he had obtained some twenty years before, in an action to which 
the present plaintiff was not a party, to the effect that the present 
defendant's water right had a priority of the date of January 18, 
1879, was conclusive upon this plaintiff under a state statute pro- 
viding that judicial decrees determining water rights and their 
priorities should be conclusive as to all persons unless contested 
within four years. In an opinion written by Mr. Justice Holmes 
the Supreme Court sustained the defendant's contention, without 
considering whether more effective means of giving notice than 
those taken in the former action brought by the present defendant 
were practicable, merely saying, "there was nothing to hinder the 
state from providing that if he [the present plaintiff] took no steps 
to assert his rights within a reasonable time after the judicial as- 
sertion of an adverse title, the decree being a public fact, he 
should lose his rights." 

It is interesting to note that in an earlier opinion, written while 
he was Chief Justice of the Massachusetts Supreme Court, Mr. 
Justice Holmes favors a similar freedom in the construction of 
the words "due process of law;" he there says, "a proceeding 
in rem may be instituted and carried to judgment without personsJ 
service upon claimants within the state, or notice by name to those 
outside of it, and not encounter any provision" of the United States 
Constitution; and that as regards notice "the immediate recording 



«Cunnius v. Reading School District (1905), 198 U. S. 458, 49 L. Ed. 
1125, 25 Sup. Ct Rep. 721; Jacobs v. Roberts (1912), 223 U. S. 261, 
56 L. Ed. 429, 32 Sup. Ct. Rep. 303. 

« (Nov. 20, 1916), 242 U. S. 20, 37 Sup. Ct. Rep. 7. 



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338 CALIFORNIA LAW REVIEW 

of the claim is entitled to equal effect from a constitutional point 
of view" with a seizure of the property.* But it is hard, neverthe- 
less, to reach any other conclusion than that to allow a person to 
be deprived of property with no notice, other than that to be 
derived from the mere recording of a judgment, when there are 
other more effective practicable ways of giving him notice, works 
an injustice which the due process clause was intended to prevent."* 

R, E. H, 

Deeds : Sufficiency of Delivery When Delivered to Take 
Effect Upon Death. — It is well settled in the United States that 
a deed delivered to a third person for delivery after the grantor's 
death is valid, if the grantor retains no control over it.^ But this 
conclusion is reached by two different theories and often we find 
both theories advanced in the same jurisdiction, the court at one 
time holding that the title passes to the grantee at the moment of 
delivery by the grantor to the depositary, and at another time that 
title does not pass until the second delivery, and then by the fiction 
of relation back, it is deemed to have passed at the time of the 
first delivery.' Where the contest is between the grantee and the 
heirs of the grantor, it makes practically no difference which theory 
is accepted, for the only real question is whether the grantee has 
the title — ^how and 'when he got it is of little importance. But 
where creditors, or persons claiming rights derived from the 
grantor between the first and second delivery come in, it is im- 
portant to determine under what theory the grantee acquires title.* 

The better theory was accepted in the case of Smith v. Smith,^ 
where the grantor wrote to his attorney: "I herewith deliver to 
you two deeds, one to each of my sons, N. D. Smith and G. C. 
Smith, and direct that you keep and hold the same in escrow 
during my lifetime, and upon my death deliver them to N. D. 
Smith and G. C. Smith so that they may then take effect." The 
court held that the title to the property vested immediately in the 

* Tyler v. Judges of the Court of Registration (1900), 175 Mass. 71, 
55 N. E. 812, 51 L. R. A. 433. 

»Bear Lake County v. Budge (1904), 9 Idaho 703, 75 Pac 614; Sutc 
v. Guilbert (1897), 56 Ohio St. 575, 47 N. E. 551, 60 Am. St. Rep. 756. 

^If the grantor retains control over such instrument it is testamentary, 
because not until his death is it intended to be operative; and being in sub- 
stance a will, it must fail of effect if it does not satisfy the statutory re- 
quirements of a will. Doe v. Bennett (1837), 8 Car. & P. 124, 34 Eng. 
C. L. 322; Hayden v. Collins (1905), 1 Cal. App. 259. 81 Pac. 1120; Ten- 
nant v. John Tennant Memorial Home (1914), 167 Cal. 570, 140 Pac 242; 
^Vellbom v. Weaver (1855), 17 Ga. 267, 63 Am. Dec. 235; Stinson v. An- 
derson (1880), 96 111. 373; Wilson v. Carrico (1895), 140 Ind. 533, 40 N. E. 
50, 49 Am. St. Rep. 213, and note; 1 Cornell Law Quarterly 100. 

2 26 Harvard Law Review 579, n. 39. 

«Wittenbrock v. Cass (1895), 110 Cal. 1, 42 Pac. 300. 

* (Nov. 29, 1916), 52 Cal. Dec. 595, 161 Pac. 495. 



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COMMENT ON RECENT CASES 339 

sons, subject only to a life estate in the grantor, thus following 
the line of California cases headed by Bury v. Young.* This theory 
carries out the intention of the grantor. By his direction to the 
depositary to retain the deed in his own possession until the 
death of the grantor, he clearly has in mind the creation of a 
situation such that he shall not be disturbed in the possession of 
the property during his life,* and as he can retain no control what- 
ever over the instrument,^ his creditors or persons claiming imder 
him should be able to attach only his interest, and should not be 
able to affect the interest of the grantee. 

The imsuccessful party in Bury v. Young,* where the theory 
that title passed inunediately on delivery to the third person was 
first laid down by the Supreme Court of California, reUed on the 
earlier case of Hibberd v. Smith,' where the theory was adopted 
that title did not pass until the second delivery, and then it related 
back to the first. This latter theory seems to be now discredited 
in California. It undoubtedly had its origin in the confusion which 
still exists, unfortunately, between the class of cases now under 
consideration and the true escrow. The distinction has been 
stated by Chief Justice Shaw: "Where the future delivery is to 
depend upon the payment of money, or the performance of some 
other condition, it will be deemed an escrow. Where it is merely 
to await the lapse of time, or the happening of some contingency, 
and not the performance of any condition, it will be deemed the 
grantor's deed presently."^® Where a deed is delivered to a 
third party to be delivered after the grantor's death, it should not 
be called an escrow, and the principles which apply to escrows 
should not be applied. It is a pure fiction to hold that the grantor 
delivers the deed after his death. 

The later California cases have not followed Hibberd v. Smith^^ 
in the view taken of delivery. It was there held that assent by 
the grantee was necessary to the delivery of a deed, whether such 
delivery was actual or constructive. 

At common law a deed became effective without any assent 
on the part of the grantee, though he could refuse it if he so 
desired. In other words, an acceptance of the deed by the grantee. 



•(1893), 98 Gal. 446, 33 Pac 338; Wittenbrock v. Cass, supra, n. 3; 
Moore v. Trott (1909), 156 Gal. 353, 104 Pac. 578; Husheon v. Kelley 
(1912), 162 Gal. 656, 124 Pac. 231; Long v. Ryan (1913), 166 Gal. 442, 
137 Pac. 29; Williams v. Kidd (1915), 170 Gal. 631, 151 Pac 1; Rice v. 
Gary (1915), 170 Gal. 748, 151 Pac. 135. 

•26 Harvard Law Review 577. 

^ Supra, n. 1. 

• Supra, n. 5. 

» (1884), 67 Gal. 547, 4 Pac. 473. 

10 Foster v. Mansfield (1841), 3 Mete. 412, 37 Am. Dec. 154. 

11 Supra, n. 9. 



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340 CALIFORNIA LAW REVIEW 

or even knowledge on his part of its execution, was unnecessary." 
The contrary view, requiring an acceptance, involves much diffi- 
culty when the grantee is an infant or an insane person and in 
$uch cases the courts presume an acceptance, or in other words, 
adopt the common-law rule.^* 

The better rule is, "When the maker of a deed delivers it to 
some third party for the grantee, parting with possession of it, 
without any condition and without reserving any control, the de- 
livery is complete and the title passes at once, although the grantee 
may be ignorant of the facts, and no subsequent act of the grantor 
can defeat the effect of such delivery."^* Later California cases 
agree that the question whether a deed has been delivered is not 
to be determined by mutual intent of grantor and grantee but 
solely by the intent of the grantor.^* 

T. G. C. 

Easements: Profits a Prendre: Nature of Right to Take 
Water From Pipes. — In the case of Southern Pacific Company v. 
Spring Valley Water Company^ the railroad company granted to 
the water company by deed "the right to lay and maintain a line 
or lines of water pipe" in the grantor's land. The consideration 
stated was "the construction of a hydrant at" a certain station "and 
the free use of water therefrom for fire, station, and all other 
railroad purposes." Many years later, the water company having 
threatened to discontinue the supply of water, the question arose 
as to what was the nature of the railroad's right to the water in 
the pipe. Was it a profit a prendre, an easement, or a contract 
right? If the right was merely contractual, either party was en- 



"Degory v. Roe (1589). 1 Leon. 152, 74 Eng. Rep. R. 141; Butler and 
Baker's Case (1591), 3 Coke 25a, 76 Eng. Rep. R. 684; Thompson v. Leach 
(1690), 2 Vent. 198, 86 Eng. Rep. R. 391; Xenos v. Wickham (1863). 
L. R., 2 H. L. 296; Tiffany, Modern Law of Real Property, §407. 

"Parker v. Salmons (1897), 101 Ga. 160, 28 S. E. 681; Winterbottom 
V. Williams (1894), 152 111. 334. 38 N. E. 1050; Miller v. Meers (1895), 
155 111. 284, 40 N. E. 577; Sneathen v. Sncathen (1891). 104 Mo. 201, 
16 S. W. 497; Davis v. (Barrett (1892). 91 Tenn. 147. 18 S. W. 113. 

"Robbins v. Rascoe (1897). 120 N. C. 79. 26 S. E. 807. 

"Kenniff v. Caulfield (1903). 140 Cal. 34. 73 Pac. 803; Estate of 
Cornelius (1907), 151 Cal. 550, 91 Pac. 329; Follmer v. Rohrer (1910). 158 
Cal. 755, 112 Pac. 544. The statement is made in Bias v. Reed (1914), 
169 Cal. 33. 145 Pac 516. that "when the deed is executed and the minds 
of the parties to it meet, expressly or tacitly, in the purpose to give it 
present effect, the deed is validly delivered." No question as to meeting of 
minds should be raised in determining delivery, as shown in William v. 
Kidd. supra, n. 5, where the court points out, "the true test under which 
delivery is to be determined is in ascertaining whether, in parting with 
the possession of the conveyance, the grantor intended to divest himself of 
title. The solution of this question is grounded entirely on the intention 
of the grantor." 

1 (Aug. 22, 1916), 52 Cal. Dec. 273, 159 Pac. 865. 



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COMMENT ON RECENT CASES 341 

titled to terminate it after a reasonable time and upon a reason- 
able notice, for the agreement was silent as to its duration.* If, 
on the other hand, it was a property right, whether an easement or 
profit a prendre, it could not be so terminated. 

An answer to the principal question is complicated by, and de- 
pends to a certain extent upon, the answers which may be given 
to two other questions: First, is water in pipes realty or per- 
sonalty? And second, did the deed convey to tiie water company 
(a) title to land; i. e., a "corporeal" interest because involving the 
technical "possession" of land (but not necessarily an heredita- 
ment) ; or (fc) mere rights in another's land, not involving "pos- 
session" thereof (and hence "incorporeal," but not necessarily 
hereditaments), in the nature either of a profit or an easement? 
The above two questions, when combined, involve four situations. 
These situations may be briefly stated and their necessary results 
indicated: (i) Suppose the water company acquired by the deed 
a section of land, and suppose, also, the water in the pipes to be 
realty; then there might be a profit a prendre to take the water. 
The taking would be (at common law) a profit and not an ease- 
ment, as tihe water is not flowing in a natural stream.* (2) Sup- 
pose next that the water company acquired title to land, but that 
the water be regarded as personalty. The right of the railroad 
company would then be to use or take personal property confined 
in a space owned by the water company, which right could be 
neither a profit nor an easement.* (3) Suppose, next, the water 
company's right in the railroad's land to be an easement, and the 
water in the pipe to be personal property. Obviously, as in the 
second situation, neither a profit nor an easement could exist. 
(4) Finally, suppose the water company's right to be an easement, 
and the water in the pipes realty. The taking of the water-realty 
would be a profit ; for only by treating the water in the pipes as a 
natural stream — denying the water to be property and recognizing 
merely rights of user therein — could one find an easement.^ In 
cases similar to the fourth situation the question has frequently 
been discussed whether one right in re aliena can be "supported 



« Echols V. New Orleans (1876), 52 Miss. 610; McCulIough etc. v. 
Philadelphia Co. (1909), 223 Pa. 336, 72 Atl. 633; Bellevue Borough v. Ohio 
V. W. Co. (1914), 245 Pa. 114, 91 Atl. 236. 

•Race V. Ward (1855), 4 El. & Bl. 702, 119 Eng. Rep. R. 259; Jones, 
Easements (1898), §55; Gale, Easements (8th ed.), pp. 8-10; Leake, The 
Law of Uses and Profits of Land (1888), p. 139; post, n. 5. 

* Supra, n. 3, and post, n. 5. 

•Manning v. Wasdale (1836), 5 Ad. & E. 758, 111 Eng. Rep. R. 1353; 
Hill V. Lord (1861), 48 Me. 83; 2 Blackstone (Cliristian's ed.) 18; supra, 
n. 3. Of course a profit a prendre in the grantor's land was not 
granted; nothing appears regarding the right to or disposition of the ex- 
cavated dirt, to indicate such an intent and everything, on the contrary, 
shows that the grantee's rights were to begin after the removal of the 
soil in question. 



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342 CALIFORNIA LAW REVIEW 

by," or be "incident to," or "rest upon" another. The better view, 
however, seems to be that the right to use the water would not 
be a right "attaching to," or "incident to," or "rearing upon" the 
easement to run the water-realty through another's land, but a 
right attaching to or directly affecting the water (property).* 

The principal case seems clearly to fall into tne fourA situa- 
tion above mentioned, in which the water company's right was 
considered an easement, and the water in the pipes realty. 

As regards the nature of the right granted to the water com- 
pany, it would, of course, have been entirely possible for the rail- 
road company to have granted in fee either a strip of land or a 
tubular section of sub-soil.^ But it is evident that land was not 
intended to be conveyed. The grant of title to land involves the 
grant of the exclusive and unrestricted use of the land granted;' 
but while the parties here obviously intended a grant of ex- 
clusive use to the space occupied by the pipes, it is equally clear 
that the use granted was not intended to be unrestricted. The 
water company, then, acquired a mere easement in the grantor's 
land, and so the court held. 

The court also held the water in pipes to be realty. Water in 
natural streams or percolating through the soil, is not property, 
either real or personal. Where, however, such waters have been 
confined (by the exercise of legal rights) in reservoirs or other 
containers they become the subject matter of ownership. The 
general rule is that water thus reduced to ownership is personal 
property. This view is supported by Wiel, and by the majority 
of the cases.* Under the California decisions, however, water in 
ponds, reservoirs and pipes — in short, all water not wholly sepa- 
rated fropi the land — is realty.*® The view taken In the principal 
case is therefore in accord with the California decisions. 

Having determined that the water company acquired an ease- 
ment in the land, and that the water in the pipes was realty, the 

•Beidler v. King (1904), 209 111. 302, 70 N. E. 763; Ru^ v. Lemley 
(1906). 78 Ark. 65, 93 S. W. 570. 115 Am. St. Rep. 17; Berry v. Godfrey 
(1908), 198 Mass. 228, 84 N. E. 304; Co. Litt. 121b, n. 7; Hanbury v. Jen- 
kins, L. R. (1901), 2 Ch. 401; Atty. (^en. v. Copeland, L. R. (1901), 2 K. B. 
101, and L. R. (1902), 1 K. B. 690; 9 Columbia Law Review 74-76; Agree- 
ments to Pay for Party- Walls, 10 Michigan Law Review 187-211; The 
Party- Wall Easement, 9 Illinois Law Review 247-258. 

^Layboum v. Gridley (1892), 2 Ch. 53; Debenham v. Sawbridge (1901), 
2 Oi. 98, 32 Law Quart. Rev. 70; Challis, Real Property (3d ed.), p. 54. 

sRcilly v. Booth (1890), 44 Ch. Div. 12; Lee v. Stevenson (1858), El. 
Bl. & El. 512, 120 Eng. Rep. R. 600; supra, n. 7. 

•Bear Lake Co. v. Ogden (1893), 8 Utah 494, 33 Pac. 135; Hagerman 
etc. Co. v. McMurray (N. M, 1911), 113 Pac. 823; Wiel, Water Rights 
in the Western States (3d ed.), Vol. 1, pp. 22-35; Jones, Easements, §55; 
1 California Law Review 484. 

10 Stanislaus Water Co. v. Bachman (1908), 152 Cal. 716, 93 Pac. 858; 
Leavitt v. Lassen Irrigation Co. (1909), 157 Cal. 82, 106 Pac. 404; Cope- 
land V. Fairview Land etc Co. (1913), 165 Cal. 148, 131 Pac 119. 



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COMMENT ON RECENT CASES 343 

conclusion, under principles of the common law, would necessarily 
have been that the right to take the water was a profit — ^and 
validly created if the precedents be accepted which hold that such 
a right in re aliena would be one directly attaching to corporeal 
property, and not one "supported by" the easement right.^* The 
court, however, held the right to be another easement. It is true 
that section 801 of the Civil Code seems to do away with the 
distinction between profits and easements, but that section has 
not been given the eflfect which its literal import would require. 
Whether, however, the right granted of taking the water was a 
profit, as at common law, or an easement under the code provision 
referred to, it would, as a property right granted for a consider- 
ation, be irrevocable so long as the grantor continued to use the 
right of way which was the consideration for the grant. And 
so the court held. But it is suggested that on principle and from 
the analogy of similar cases, the true intention of the parties, as 
gained from the language of the deed and from all the surround- 
ing circumstances, was to make a contract for the sale of personal 
property (realty until severed) and not to grant a right in an- 
other's land.^* 

H. A. J. 

Gifts: Release of Debts. — For a creditor to make a gift 
of a debt to his debtor may be a commendable deed, yet honest 
attempts to do so are by no means certain of success. In Sullivan 
V. Shea} the evidence showed that the creditor had clearly, em- 
phatically, and repeatedly declared his intention to forgive the 
debt, and had refused tenders of payment, yet it was held enforce- 
able by his administratrix, upon the debtor's failure to give positive 
proof of delivery or destruction of the note; the inference that 
the decedent had destroyed it, arising from failure to find it among 
his effects, was not sufficient proof. The decision is undoubtedly 
sound on authority, though the result is' contrary to the plain 
intention of the parties. 

English law has been quite liberal to the debtor, more so than 
American, in this regard, particularly as to testamentary release 
of debt.* As to gifts inter vivos, including those causa mortis,' 
of which fraudulent claims are readily raised after the death of 

^^ See supra, notes 3, 5, 6. 

"Tone V. Tillamook City (1911), 58 Ore. 382, 114 Pac. 938; McCul- 
lough etc. V. Philadelphia Co. (1909), 223 Pa. 336, 72 Atl. 633. In the 
present note we have ignored the public-utility aspects of the case. 

1 (Dec 18, 1916). 23 Cal. App. Dec. 974, 162 Pac. 925. 

* 24 Jurid. Rev. 201 ; 26 Harvard Law Review 445. Almost any 
expression of intention to forgive was formerly given validity. 

•Gifts causa mortis are subject to the same requirements for validity 
as other gifts inter vivos. Beebe v. Coffin (1908), 153 Cal. 174, 94 Pac 
766: Darland v. Taylor (1879), 52 Iowa 503, 3 N. W. 510, 35 Am. Rep. 
285. 



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344 CALIFORNIA LAW REVIEW 

the alleged donor modem law requires that the alleged 
donee prove the gift affirmatively by convincing evidence,* 
and that he prove not only the intent to make the gift, but 
the execution of that intent. A present delivery of the thing 
given, either actual or constructive, so far as the subject is capable 
of delivery, is necessary to complete any gift.*' Where the bene- 
volent donor of intangible property usually fails is in not making 
the required constructive delivery. 

Yet there are numerous ways of forgiving a debt. If it is 
evidenced by a written instrument, actual delivery of the instru- 
ment is sufficient, whether or not it be cancelkd or indorsed.* 
Any debt, written or oral, may be released by a deed, release, 
receipt, or similar document delivered to the debtor.^ Some juris- 
dictions require release under seal in certain cases,® but in general 
it may be quite informal. 

The requirement of even a constructive delivery is not always 
insisted on. It has been held that recordation of a release is 
equivalent to delivery.* Indorsement of part payment on a note 
with intent to make a gift of the sum indorsed may be sufficient, 
without a ceremonial delivery and redelivery of the note.^* 
Similarly, the entry of a credit on a ledger should be equivalent to 
release of a corresponding debit if so intended, without handing 
over the book.^^ Intentional destruction of a note by its payee is 
also effectual.^* 

In certain cases the rule has been wholly abrogated. Courts 
have enforced promises of release on principles of estoppel.^* 
Evidence that the loan was intended as an advancement to a son 
was allowed to defeat action on the bond given ostensibly to secure 
it.^* 



* Supra, n. 1; Denigan v. Hibcmia etc. Society (1899), 127 Cal. 137, 59 
Pac 389. 

» Knight V. Tripp (1898). 121 Cal. 674, 54 Pac* 267. Where actual 
delivery possible, verbal gift with symbolical delivery not sufficient 

•Licey v. Licey (1848), 7 Pa. St 251, 47 Am. Dec 513; Hale v. Rice 
(1878), 124 Mass. 292. 

TMcKenzie v. Harrison (1890), 120 N. Y. 260. 24 N. E. 458. 17 Am. 
St. Rep. 638, 8 L. R. A. 257, and note. Cf . Upper San Joaquin Irr. C. G). v. 
Roach (1889), 78 Cal. 552. 21 Pac 304, as to form of release. 

« Note, 21 L. R. A. 693. 

•Newell v. Newell (1857), 34 Miss. 385, (estoppel also involved.) 

10 Green v. Langdon (1873), 28 Mich. 221; Estate of Lewis (1891), 
139 Pa. St. 640. But see Morey v. Wiley (1901), 100 III. App. 75; note, 
Ann.Cas. 1915 A, 18, 20. 

11 See Maclay v. Robinson (1895), 91 Hun. 630, 36 N. Y. Supp. 30. 
"Denunzio's Receiver v. Scholtz (1903), 117 Ky. 182, 77 S. W. 715, 

4 Ann. Gas. 529. 

"Yeomans v. Williams (1865), L. R. 1 Eq. Cas. 184. See Miller v. 
Western College (1898), 177 111. 280, 52 N.E. 432, 69 Am. St Rep. 242. 42 
L. R. A. 797; Steele v. Gatiin (1902), 115 Ga. 929, 42 S. E. 253, 59 L. R. A. 
129. 

1* Flower v. Marten (1837), 2 My. & Cr. 459, 40 Eng. Rep. R. 714. 



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COMMENT ON RECENT CASES 345 

Another method of making a gift without delivery is for the 
donor to declare himself trustee for the donee.^* Whether a 
creditor may successfully declare himself trustee of a debt for 
the debtor as beneficiary does not seem to be decided. Apparently 
no one has deliberately attempted the feat and it is well settled that 
an incomplete gift will not be construed as a valid trust, where 
there was no actual intention to create a trust.^* A grant of the 
debt to a third person as trustee for the debtor is open to the sam« 
question. 

It will be noticed that several of the methods of forgiveness 
mentioned, though perfectly valid, are difficult to prove after the 
creditor's death. The debtor must prove both that the act was 
done, and that it was intended to operate as a release. Qearly 
the safest course for the debtor is to have his would-be benefactor 
cancel and surrender the note to him, or deliver it with a receipt 
in full. But benefactors are sometimes averse to such procedure, 
either as a reflection upon their good faith, or with a vague desire 
to keep the obligation l^ally alive to use in case of emergencies. 
Many an attempt is made to satisfy the latter desire by making 
the debt terminable upon the creditor's death, but these almost 
uniformly fail, as being incomplete gifts, and testamentary in char- 
acter. A note made payable to the payee alone and not to any 
executor, trustee, or assignee, has been held valid for that purpose, 
but there are contrary decisions in very similar cases.*' 

0. C. P. 

Landlord and Tenant : Liability of Tenant to Pay Rent 
Notwithstanding Destruction of Material Part of Leased 
Premises. — Section 1932 of the Civil Code of California provides 
that "The hirer of a thing may terminate the hiring before the time 
agreed upon .... when the greater part of the thing hired perishes 
from any other cause than the want of ordinary care of the hirer." 
In Egan v, Dodd^ ,the court for the first time construed this section 
with relation to leased buildings. The lease in that case contained 
a covenant by the lessee to make all repairs and to return the 
premises in as good order and repair as received by him, reason- 
able use and wear excepted. After notice by the city authorities 
to the tenant to repair, the wall of the building collapsed, due to 
an excavation on the adjoining land. The court held that the lessee 



i» Marten v. Funk (1878), 75 N. Y. 134, 31 Am. Rep. 446. 

"Milrpy v. Lord (1862), 4 DeG. F. & J. 264, 45 Eng. Rep. R. 1185; 
Norway Sav. Bank v. Merriam (1895), 88 Me. 146, 33 Atl. 840. 

" Bedford's Executor v. Chandler (1908), 81 Vt. 270, 69 Atl. 874, 130 
Am. St. Rep. 1057, 17 L. R. A. (N. S.) 1239 and note. 

1 (Feb. 14, 1917), 24 Cal. App. 258. Sec also Meek v. Cunha (1908), 
8 Cal. App. 98, 102, where § 1932 was held not to apply to lease of land 
and crops. 



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346 CALIFORNIA LAW REVIEW 

was bound to make the repairs and to pay rent to the end of the 
term agreed upon. The decision was based on the grounds that, as 
there was an express covenant on the part of the lessee to repair, 
section 1932 did not apply, and that the wall was not a material 
part of the building. 

At common law, under a general covenant to repair, a tenant 
was bound to repair, notwithstanding the partial or total destruc- 
tion of the property by whatever cause occasioned.^ The liability 
of the tenant for rent after the buildings were injured or destroyed, 
was equally well established. A distinction is sometimes made be- 
tween a lease of premises and a lease of a building with a covenant 
to repair.* In the latter case, the tenant need not rebuild when 
the building is destroyed, for repair does not involve the erection 
of a new structure, nor does he have to pay rent, for there is a 
total destruction of the subject matter of the contract. Statutes 
have been passed in several states modifjring the strict common 
law rules,* but the courts are inclined to construe these very 
strictly.* Nor is the California court any exception to this rule. 
By the construction given section 1932 in the principal case, the 
common law is in full force where Aere is an agreement by the 
lessee to repair, section 1932 being merely an extension of the 
protection afforded a tenant under sections 1941 and 1942 where 
he makes no covenant to repair. 

While the decision of the principal case is on all points sus- 
tained by the great weight of authority, it seems a harsh rule that 
a tenant should have to renew a material part of a leased building 
when the loss has been caused through no fault of his. The doc- 
trine of the civil law, substantially re-enacted in the French® and 



sPolack V. Pioche (1868), 35 Cal. 416, 95 Am. Dec. 115 and note; 
Lockrow V. Horgan (1874), 58 N. Y. 635; Heintze v. Erlacher (1882), 
N. Y. 1 City Ct. R. 465; Leavitt v. Fletcher (1865), 10 Allen 121; note, 
22 L. R. A. 613; note, 38 Am. St. Rep. 476-492; Tiffany, Landlord and 
Tenant (1910), § 116d, p. 761, §182 et seq., pp. 1190-93; McMillan v. Solo- 
mon (1868), 42 Ala. 356, 94 Am. Dec. 654, and note, p. 662. As to early 
development of subject, cf. 2 Law Mag. 290; 3 Kent's Com. 466; 24 Cyc. 
1085-89. 

•Tiffany, Landlord & Tenant (1910), p. 863. For English rule, by 
which no distinction is made between total and partial destruction, cf. 9 
Harvard Law Review 127. But see 133 L. T. 387; note, 9 Ann. Cas. 107. 

* Kentucky Stats. (1903), §2997; Missouri Rev. Stats. (1889), §2393; 
N. Y. Laws (1896), c. 547; N. Y. Gen. Laws, c. 46, § 197; Ohio Rev. Stats. 
(1887), §4113; Va. Code, §2455; see 24 Cyc. 1089; see also 38 Am. St. 
Rep. 476-92; N. J. Gtn. Stats., p. 1923. 

^Markham v. David Stevenson Brewing Co. (1900), 51 App. Div. 463, 
64 N. Y. Supp. 617, affirmed (1901) in 169 N. Y. 593. 62 N. E. 1097; 
Lockrow v. Horgan, supra, n. 2; Seymour v. Hughes (1907), 105 N. Y. 
Supp. 249. 252, and cases cited; Booraem v. Morris (1906), 74 N. J. L. 95, 
64 Atl. 953. 

•French Civil Code (1908), §1732, "Lessee liable unless he can prove 
that such damages or loss happened through no fault of his." 



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COMMENT ON RECENT CASES 347 

German Civil Codes/ is that "when the thing perishes without the 
tenant's fault, he is not obliged to make it good, but from that 
time his rent ceases," or that when the use is lessened, the rent 
should be apportioned.* 

/. M. P. 

Practice: Exemption of Suitors and Witnesses Tem- 
porarily IN State From Service of Process. — To the lawyer who 
has not had occasion to investigate the question, it may come as 
a surprise to know that the authorities have established certain 
exceptions to the general rule that any person within the terri- 
torial jurisdiction of the state may be served with process. In 
considering the question for the first time, the United States 
Supreme Court in Stewart v. Ramsay^ decided what had already 
come to be the weight of opinion in state and lower federal courts ; 
viz, that suitors, as well as witnesses, coming from another state 
or jurisdiction for the primary purpose of attending court are 
exempt from the service of civil process while in attendance upon 
court, and during a reasonable time in coming and going.^ The 
rule seems to be the modem counterpart of the common law 
privilege of exemption of parties and witnesses from arrest on civil 
process, eundo, morando, et redeundo,* the arrest having for the 
most part given way to the summons. 

The privilege finds its basis in the very substantial right of 
every man to be sued at home, a right which he is not willing 
to risk by voluntarily entering another jurisdiction even to attend 
court. If his presence is desired, it must be solicited. The priv- 
ilege becomes, therefore, the privilege of the court, and but inci- 
dentally that of the individual. It is the price which the court 
is willing to pay to get those before it who alone can furnish the 
best evidence, and to prevent the interruption of judicial machinery. 
It is extended, therefore, to plaintiffs as well as to defendants;* 
and it is also extended in the case of witnesses, to attendance be- 
fore legislative commissions,'* bankruptcy proceedings,® and the 



^German Civil Code (1907), § 537, providing that rent be apportioned 
according to injury suffered. 

•PuflFendorf, The Law of Nature and Nations (1729). Book V, Chap. 
VI, par. 2. 

1 (Dec. 4, 1916). 37 Sup. Ct. Rep. 44. 

'Parker v. Hotchkiss (1849), Fed. Cas. 10,739; State v. District Court 
(1915), 51 Mont. 503, 154 Pac. 200; Person v. Grier (1876), 66 N. Y. 124, 
23 Am. Rep. 35; Rix v. Sprague Machinery Co. (1914), 157 Wis. 572, 
147 N. W. 1001. 

•Central Trust Co. v. Milwaukee St. Ry. Co. (1896), 74 Fed. 442; 
Thompson's Case (1877), 122 Mass. 428, 23 Am. Rep. 370; Ellis v. 
De (^armo (1892), 17 R. I. 715, 24 Atl. 579. 

*Hale V. Wharton (1896), 73 Fed. 739. 

•Thorp V. Adams (1890), 58 Hun. 603, 11 N. Y. Supp. 479. 

• Matthews V. Tufts (1882), 87 N. Y. 568, 62 How. Pr. 508. 



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348 CALIFORNIA LAW REVIEW 

taking of depositions.^ A liberal attitude has resulted in the grant- 
ing of the privilege to the non-resident attorney accompanying his 
client.® Comity has resulted in state courts allowing the exemp- 
tion to apply to parties and witnesses in attendance on fedeial 
courts,* and one state, at least, has extended it to witnesses passing 
through the state to attend a sister state's courts.^*' 

This principle of exemption from process offered as an induce- 
ment for attendance must necessarily contemplate any case where 
attendance on court is voluntary, and exclude the case where 
presence in the jurisdiction is compelled. In those jurisdictions, 
therefore^ where witnesses residing in another county in the same 
state are not subject to compulsion, they are exempt while volun- 
tarily attending court in another county.^^ The California Court, 
however, early took the contrary position,^* though such witnesses 
are exempt from arrest. On the other hand, a person in a crim- 
inal proceeding, dragged into the jurisdiction by extradition pro- 
cess, cannot avail himself of a reward intended only for voluntary 
appearance.^' The apparent exception of persons extradited from 
foreign countries, who cannot be proceeded against except for 
the offence for which extradited, rests solely upon treaty pro- 
visions." 

The service of civil process upon a privileged person, how- 
ever, is not void, and the privilege must be asserted at the first 
opportunity or it is waived." And an act of a privileged person 
while in the jurisdiction, which itself gives rise to proceedings 
against him, is regarded as a waiver as to those proceedings." 

W, A, S. 

Public Service Companies: Scope of Federal Employers' 
Liability Act. — ^The relation of interstate carriers to their em- 



^ Burroughs v. Cocke & Willis (Okla., 1916), 156 Pac. 196. 

•Central Trust Co. v. Milwaukee St Ry. Co. (1896). 74 Fed. 442; 
Read v. Neff (1913), 207 Fed. 890. Contra, Greenlcaf v. People's Bank 
(1903). 133 N. C 292. 45 S. E. 63a 

•Bunce v. Humphrey (1915). 214 N. Y. 21, 108 N. E. 95; Sofgc v. 
Lowe (1915), 131 Tenn. 626, 176 S. W. 106. 

i«Sofge V. Lowe (1915), supra, n. 9. 

"Gregg V. Sumner (1886), 21 111. App. 110; ReiflF v. Tresslcr (1912), 
86 Kan. 273, 120 Pac 360; Sebring v. Stryker (1894), 10 Misc. Rep. 289, 
30 N. Y. Supp. 1053. 

"Page V. Randall (1855), 6 Cal. 32. 

"Netograph Mfg. Co. v. Scrugham (1910), 197 N. Y. 377, 90 N. E. 962, 
27 L. R. A. (N. S.) 333. The federal courts take a contrary position wholly 
because of stare decisis. Feistcr v. Hulick (1916), 228 Fed. 82L 

i*U. S. V. Rauscher (1886). 119 U. S. 407, 30 L. Ed. 425, 7 Sup. Ct 
Rep. 234; In re Rdnitz (1889). 39 Fed. 204. 

i» Matthews v. Puffer (1882). 10 Fed. 606; Weston v. Citizens* 
National Bank (1901). 64 App. Div. 145, 71 N. Y. Supp. 827. 

"Nichols V. Horton (1882). 14 Fed. 327; Iron Dyke Copper Min. Co. 
V. Iron Dyke R. Co. (1904), 132 Fed. 208. 



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COMMENT ON RECENT CASES 349 

ployees, a subject within the field of concurrent commercial juris- 
diction, was definitely appropriated to exclusive federal control 
with the passage of the Federal Employers' Liability Act. By 
this act it is declared that every common carrier by railroad while 
engaging in commerce between any of the several states shall be 
liable to any person suflFering injury while he is employed by such 
carrier in such commerce, if the injury results in whole or in part 
from the negligence of the carrier or its agents. It is at once 
obvious that to come within the scope of the act both the carrier 
and the injured employee must be engaged in interstate commerce, 
although it is not required that a fellow servant causing the injury 
be so engaged.* Whether such an employee is engaged in inter- 
state commerce is to be determined, not from the general nature 
of his employment, but from the work in which he is engaged at 
the particular time at which the injury occurs. In Minneapolis and 
St, Louis Railroad Company v. Winters^ the question was pre- 
sented whether one engaged in making repairs in a roundhouse 
or shop upon an instrumentality used in interstate commerce was 
at that particular time engaged in interstate commerce so as to 
claim the protection of the federal act. 

When a carrier is engaged in both intrastate and interstate com- 
merce, using the same instrumentalities, appliances and employees 
in both classes of commerce, it is difficult to draw the line of de- 
marcation between the two classes of employment; but the prin- 
ciple that has been applied, so far as it can be explicitly stated, 
seems to be that one employed at the time of his injury in the 
use of, or maintaining in proper condition, any instrumentality or 
appliance that aids in or is connected with interstate commerce, 
comes within the statute, although such instrumentality or ap- 
pliance may also be used in intrastate business.' Thus, one en- 
gaged in repairing a bridge,* a track,** a freight shed, in housing 
interstate freight,* or in erecting poles on which are strung the 
railroad despatch wires,^ was held to come under the statute. So 
also, of those engaged in the actual operation of interstate trains. 



1 Second Employers' Liability Cases (1911), 223 U. S. 1, 56 L. Ed. 327, 
32 Sup. Ct. Rep. 169. 

« (Feb. IS, 1917), 37 Sup. Ct Rep. 170. 

«Eng V. Southern Pacific Co. (1913), 210 Fed. 92. 

*Pedcrson v. Del. Lack. & W. R. R. (1912), 229 U. S. 146. 57 L. Ed. 
1125, 33 Sup. Ct Rep. 648; Grand Trunk Ry. Co. v. Knapp (1916), 233 
Fed. 950. 

» Zikos V. Oregon R. & Nav. Co. (1910), 179 Fed. 893; (Antral R. Co. v. 
Colasurdo (1911), 192 Fed. 901; St Joseph & G. I. Ry. Co. v. U. S. (1916), 
232 Fed. 349. 

• Supra, n. 3. 

^Coai & Coke Ry. Co. v. Deal (1916), 231 Fed. 604. 



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350 CALIFORNIA LAW REVIEW 

as switchmen,* firemen,® despatchers,*^ and car sealers.^^ In spite 
of the intimation to the contrary in the First Employers' Liability 
Cases," it has been repeatedly held that men engaged in repair 
shops in repairing instrumentalities used indiscriminately in intra- 
state and interstate commerce, come within the purview of the 
act.^» 

The United States Supreme Court, however, in the principal 
case definitely decides that one engaged in making repairs in a 
roundhouse or shop upon an instrumentality used in interstate 
commerce is not subject to the act, for at such time the instru- 
ment is definitely withdrawn from all commerce. Running repairs 
are expressly distinguished, as are repairs of road, track and other 
permanent structures. This decision, besides having the effect of 
overruling, among others,** many state decisions, mcluding those 
of California denying the applicability of the state law in such 
cases," makes necessary a modification of the above test. In so 
far as employment rests upon the character of the instrumentality, 
the instrumentality must be appropriated or dedicated to actual 
service; and, being in service, the character of the instrumentality 
will be determined by the character of the traffic. Thus, by elimi- 
nating all employments preparatory to the commencement of com- 
merce, the decision forces a reduction of all cases to the single 
principle, whether the instrumentality is in actual service in com- 
merce — bridges, tracks and similar facilities being regarded for 
this purpose as in actual use. 

W. A. S. 

Statute of Limitation: Open Book Account. — When a 
merchant sells a bill of goods at a fixed price and charges the 
amount on his books, must he bring suit in two years as on a 

8 Norfolk & Western Ry. v. Earnest (1912), 229 U. S. 114. 57 L. Ed. 
1C96. 33 Sup. Ct. Rep. 654; Pittsburgh etc. R. Co. v. Glinn (1915). 219 Fed. 
148. The principal case still leaves doubtful the case of C. B. & Q. R. R. 
V. Harrington (1915), 241 U. S. 177. 60 L. Ed. 941. 36 Sup. Ct. Rep. 517. 

»Lamphere v. Oregon R. & Nav. Co. (1912). 196 Fed. 336. 

10 Baltimore & Ohio v. I. C. C (1910). 221 U. S. 612, 55 L. Ed. 878, 
31 Sup. Ct. Rep. 621. 

" St. Louis, S. F. & Texas R. Co. v. Seale (1912), 229 U. S. 156, 
57 L. Ed. 1129. 33 Sup. Ct. Rep. 651 

12 First Employers' Liability Cases (1907), 207 U S. 463, 52 L. Ed. 297. 
28 Slip. Ct. Rep. 141; Zikos v. Oregon R. & Nav. Co., supra, n. 5. Cf. 1 
California Law Review 196. 

13 Northern Pac. R. Co. v. Maerkl (1912), 198 Fed. 1; Law v. Illinois 
Central R. Co. (1913). 208 Fed. 869; Chicago, K. & S. R. Co. v. Kindle- 
sparker (1916). 234 Fed. 1. 

1* Supra, n. 13. The roundhouse or shop housing the instrumentality 
can no longer be regarded as an instrumentality of interstate commerce, 
for it took its character from the instrumentality housed. Thomas v. 
Boston & M. R. R. (1915). 219 Fed. 180. 

i» Southern Pacific Co. v. Pillsbury (1915). 170 Cal. 78^ 151 Pac 277\ 
and modifying San Bernardino v. State Board of Equalization (1916), 172 
Cal. 76, 155 Pac. 458, in so far as it covers the question of repairs. 



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COMMENT ON RECENT CASES 351 

simple contract not in writing,^ or is he allowed four years as 
upon an open book account?^ An open book account has been 
variously defined,* but it is generally agreed that an account is 
"open" only when there have been a series of uninterrupted or 
current dealings between the parties, which are kept unclosed with 
the expectation of further transactions between them,* or where 
some term of the bargain remains to be fixed, whether there is 
one item or several.** 

Judged by either of these tests the result reached by the Dis- 
trict Court of Appeal in Merchants Collection Agency v. Levi^ is 
correct. Two items of goods had been sold to defendant on the 
same day at a fixed price and charged to him on the books. No 
payments were made or other items entered. Upon suit filed more 
than two years thereafter it was held that the transaction was 
barred by section 339 of the Code of Civil Procedure which covers 
simple accounts not in writing. In determining that this was not 
an open book account under the 1907 amendment to section 337, 
Code of Civil Procedure, the court announced as the test that 
"the debtor must have made payments which, being credited to 
him, would indicate his desire and intent that the account should 
remain open."' This interpretation results from the use of the 
words "balance due" which appeared in the old provision on 
mutual, open and current accounts® and which were carried over 
into the 1907 amendment which covered both mutual, open and 
current accounts and open book accounts.* But to apply this 
qualification to open book accounts is to restrict them in a man- 
ner unknown in other states and probably not contemplated by 
the legislature. 

The view of merchants and the profession seems to have been 
that the amendment of 1907 extended the four year period of 
limitation to all book accounts not stated, whether of one item or 
many, or of fixed terms or not, and that as far as merchants' 
accounts were concerned section 339, Code of Civil Procedure,*® 



iCal. Code Civ. Proc, §339, subd. 1. 
«Cal. Code Civ. Proc, §337, subd. 2. 
» 1 R. C. L. 207, 25 Cyc. 1044, 6 Words & Phrases, 4984. 

* Mercantile Trust Co. v. Doe (1914), 26 Cal. App. 246, 254, 146 Pac. 
692; McCamant v. Batsell (1883), 59 Texas 363, 368; Wroten Grain & Lbr. 
Co. v. Mineola Box Mfg. Co. (1906), 95 S. W. (Tex.) 744; 1 Am. & Eng. 
£ncvc. of L^aw 435 

•The (Solden Rod (1907), 153 Fed. 171; Gayle's Adm'r v. Johnston 
(1882), 72 Ala. 254, 47 Am. Rep. 405. 

« (Jan. 26, 1917), 24 Cal. App. Dec. 166. 

^ Supra, n. 6. 

» Cal. Code Civ. Proc., § 344. 

• Supra, n. 2. 

^^^ Before 1907 the two year period covered open book accounts along 
with other simple accounts not in writing. Adams v. Patterson (1868), 
35 Cal. 122; Gwinn v. Hamilton (1885), 7 Pac (Cal.) 837; Rocca v. Klein 
(1888), 74 Cal. 526, 16 Pac. 323. 



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352 CALIFORNIA LAW REVIEW 

no longer had any application, except as to accounts stated. It is 
highly desirable that merchants should know definitely when they 
must sue on their accounts. If the l^slature did intend to affect 
all merchants' accounts by the amendment, it would perhaps be 
desirable, in view of the already settled meaning of the term 
"open book account,"^^ to remove further doubt by a rephrasing 
of the section. 

An analysis of the principal case in its effect upon the Statute 
of Limitations in the various kinds of merchants' accoimts gives 
the following results. If there are only one or two items clearly 
agreed upon and no payment on account, the statute is two years; 
even if payments have been made, the view in other states is that 
this is not an open book account." There is no decision in Cali- 
fornia, but the period is probably two years. Where there is a 
series of transactions such as to constitute an open book account 
generally,*' still in California the period of limitation is two years 
unless pa)mients have been made, in which case it is four years. 
Where there are one or two items, the terms of which are in dis- 
pute, there is an open book account in other states,** but in Cali- 
fornia the statute runs in two years unless there is a balance due 
extending the period to four years. Why should not the legisla- 
ture substitute for this variety of rules a simple, uniform, four 
year limitation for all merchants' accounts, including accounts 
stated? A suggested difficulty" in the latter case is that this will 
enable a merchant to wait for almost four years, then render a 
statement to reduce his claim to an account stated and add four 
years more. But practically, a merchant would not endanger his 
account by waiting so long merely to add another four year period 
to the one already given him. 

/. G. 

Statute of Limitations: Underground Trespasses: Con- 
structive Fraud. — ^The statutes of most states simply provide 
that actions for trespass to realty shall be commenced within a 
certain time after the conunission of the act, while actions in 
cases of fraud need only be commenced within a certain time after 
the discovery thereof. In the statutes of but few states is there 
a provision that actions for underground trespasses and unlawful 
removal of ore shall be commenced within a certain time after 
the discovery of the trespass.^ In the absence of such a statute 

11 Supra, notes 4 and 5. 

12 Supra, notes 4 and 5. 
18 Supra, n. 4. 

1* Supra, n. 5. 

"Auzerais v. Naglee (1887), 74 Gal. 60, 67, 15 Pac. 371. For notes on 
Account Stated see 2 California Law Review 50, 3 California Law Re- 
view 317. 

1 Montana, Rev. Codes (1907), §6449; New Mexico, Comp. Laws 



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COMMENT ON RECENT CASES 353 

it is obvious that if the statute of limitations applicable to visible 
trespasses is applied, in most cases an injured party will be de- 
prived of his remedy before he could know by the exercise even 
of the greatest amount of care that an injury had been done him — 
an unfortunate result, yet one which was reached by the Wash- 
ington court in Golden Eagle Mining Company v. Imperator-Quilp 
Mining Company,* where it was held that the statute applicable to 
ordinary trespasses applied even where the trespass was intentional. 
Directly contra to this was the holding of the California court in 
lightner Mining Company v. Lane,* where it was held that in 
the case of an intentional underground trespass the concealment 
of the act suspended the statute, and that the statute relative to 
fraud was to be applied. 

Undoubtedly the view taken by the California court is a com- 
mon-sense one, and the justice of the ruling was, of course, noted 
in the Washington case. The difficulty, however, presented to the 
court is one which always presents itself in the case of rigid 
codification, with its consequent mutually exclusive classification. 
Because it considered the cause of action as arising out of a tres- 
pass, the unlawful entry into the land of another, the court in the 
principal case felt constrained to hold that the statute of limita- 
tions applicable to trespasses must control, for "the substantive 
cause of action was not fraud" — a view sharply contrasted with 
the view in the Lightner case, where it was held that "the act in 
its very nature constitutes the deceit which makes it a fraud," and 
that because of this fraud, irrespective of the character of the 
action, time will not commence to run until the act was or might 
have been discovered. 

The California view finds considerable support in the authori- 
ties,* though the cases involving the precise point are few. It is 
to be noted, however, that thus far the rule in California has been 
applied merely to the case of an intentional trespass and an in- 
tentional concealment, where indeed, elements of fraud may be 
found. The graver question arises whether the same rule would 
be applied in the case of an inadvertent trespass where no active 
attempt is made at concealment. Many of the elements upon which 



(1897), §§2916, 2978; Nevada, Rev. Laws, (1912). §4967; Ohio, Rev. Stats., 
§4962; Utah, See Bullion Beck & Champion Min. Co. v. Eureka Hill Min. 
Co. (1909), 36 Utah, 329, 103 Pac. 881. 

« (Wash., 1916), 161 Pac. 848. 

• (1911), 161 Cal. 689, 120 Pac. 771, Ann. Cas. 1913 C, 1093. 

*Lewcy v. Frick Coke Co. (1895), 166 Pa. 536, 31 Atl. 261, 28 L. R. A. 
283, 45 Am. St. Rep. 684; Eccles. Commrs. v. N. E. Ry. Co. (1877), L. R.. 
4 Ch. Div. 845, overruling Hunter v. Gibbons (1856), 1 H. & N. 459, 465, 
156 Eng. Rep. R. 1281; Bulli Coal Min. Co. v. Osborn, (1899) App. Cas. 
351, 362. Contra, but changed by statute as noted supra, n. 1, Williams v. 
Pomeroy Coal Co. (1882), 37 Ohio St. 583. See also (though not a case 
of underground trespass) Bailey v. Glover (1874), 88 U. S. 342, 22 L. 
Ed. 636. 



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354 CALIFORNIA LAW REVIEW 

fraud could be built are here lacking. Though a contrary view 
prevailed for a time," it now seems that in England in the case 
of such an inadvertent trespass time commences to run from the 
date of the commission of tiie act/ However, it is apparent that 
every consideration which induces the application of the rule in 
the case of an intentional trespass applies to the case of an inno- 
cent and inadvertent trespass. No fiction can be indulged in that 
the owner is constructively in possession of, and therefore held 
to know what is occurring within his land. It cannot be pre- 
sumed that the legislature intended to enact a statute which 
would cut off the injured party's remedy without giving him an 
opportunity for the redress of the wrong admittedly done. If, 
indeed, the intentional underground trespass and the intentional 
concealment thereof be considered an actual fraud, why not term 
the inadvertent trespass, which also is of such a character as to 
"conceal itself," a constructive fraud? 

M. W. 

Wills: Signature of Olographic Will. — Section 1277 of 
the California Civil Code demands that an olographic will should 
be entirely written, dated and signed by the hand of the testator 
himself. The name of the testator need not be subscribed to the 
testament; if it appears in any part of the will, it may be sufficient 
to constitute a signature within the terms of this section if upon 
the face of the instrument it is clear that the name was intended 
as a signature. As established by Estate of Manchester^ and 
Estate of McMahon,^ "the true rule .... is that wherever placed, 
the fact that it was intended as an executing signature must satis- 
factorily appear on the face of the document itself."* Conse- 
quently where at the beginning of the will, the testatrix writes, 
"This is the last will and testament of Elizabeth R. McMahon," 
and the will concludes with the statement, "I do hereby publish 
and declare the foregoing, entirely written, dated and signed by my 
own hand, to be my last will and testament," the name appearing 
in the initial clause of the testament is intended as a signature and 
the will is valid.* On the other hand, where the concluding clause 
reads, "Whereunto I hereby set my hand this fourteenth day of 
January, 1914," and no signature follows, the name appearing in 
the first clause of the will is clearly not intended as a signature 
and the will is invalid.* 



*Eccles. Commrs. v. N. E. Ry. Co., supra, n. 4. 
« Bulli Coal Min. Co. v. Osbom, supra, n. 4 

1 (Feb. 15. 1917), 53 Cal. Dec. 220. 163 Pac 358. 

2 (Feb. 16. 1917). 53 Cal. Dec. 225. 

> Estate of Manchester, supra, n. 1, at p. 223. 
'^ Estate of McMahon, supra, n. 2. 
<^ Estate of Manchester, supra, n. 1. 



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COMMENT ON RECENT CASES 355 

The common-law courts in interpreting statutes concerning wills 
have distinguished between signing a will and subscribing a will. 
Under the English Statute of Frauds* demanding that "all devises 
and bequests" shall be "signed by the party so devising the same," 
it was not necessary that the signature should appear at the end 
of the will/ To set at rest the doubts which arose on this point 
the Statute of Wills^ provides that the will shall "be signed at 
the foot or end thereof." So strict were the decisions of the 
courts, which adopted a literal construction of this mandatory 
clause, that it became necessary to amend the Statute of Wills 
in this respect by the Statute 15 & 16 Vict., c. 24 (1852), which 
provides in general that a will is not invalidated by the fact that 
the signature does not appear immediately after the last word of 
the will, or that the signature is written in the testimonium clause, 
although it is specified that the act shall not operate to give effect 
to dispositive clauses following, or beneath the signature. Section 

1276 of the California Civil Code, providing that "every will other 
than an olograjShic will and a nuncupative will" must be "sub- 
scribed at the end thereof," is based upon the English statutes. 

On the other hand, the French courts in construing the term 
signed under Article 970 of the Code Napoleon (of which section 

1277 of the California Civil Code is almost a literal translation) 
arrive at practically the same conclusion with reference to the 
position of the signature as do the English courts under the 
Statute of Wills and the California Court under section 1276 of 
the Civil Code, which demand that the signature be subscribed 
"at the end" of the will. The commentators on the French law 
who adhere to the stricter view, hold that "the signature should 
be at the conclusion of the will because it is the completion and 
perfection of the act."® Again, "the signature is the means of certi- 
fying to all which precedes it. That which follows the signature 
is outside of the act and does not form a part of the testament."^*' 
"Everyone agrees that the place of the signature is indicated by 
the nature of things; it is the mark of accomplishment of the will 
of the testator; it is the final approbation which he gives to the 
act; it is thus necessary that all the dispositions of the testament 
be terminated by the signature."^^ Nevertheless, the view of the 
French courts, and those commentators who support it, is that 
it is not absolutely necessary that the name of the testator, to con- 
stitute a valid signature, must be detached from, and be written 
under, the body of the will; it may be valid even if it is em- 
bodied in the final clause of the testament, provided that the words 



•29 Car. 2. c. 3 (1677). 

^Lcmayne v. Stanley (1681), 3 Lev. 1. 

M Vict., c. 26 (1837). 

•Pothier (2d ed., 1861), Vol. 8, p. 229. 

10 Laurent, Principcs de Droit Civil (1876), Vol. 13, p. 242. 

11 Laurent, Principcs de Droit Civil (1876), Vol. 13, p. 247. 



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356 CALIFORNIA LAW REVIEW 

which follow it may be disregarded as not essential to the validity 
of the will." Such a doctrine has been quoted with approval by 
the Louisiana Supreme Court^' in the construction of a code 
section identical with section 1276 of the California Civil Code. 
Consequently, in France, where the words following the name in 
the final clause of the will could not be disregarded because they 
included the date, an essential element of the testament, the name 
was held invalid as a signature;^* on the other hand, where the 
words following the name in the testimonium clause included the 
date but could be disregarded because the date also appeared above 
in the body of the will, the name was considered a valid signature." 
In spite of the logic of the French commentators and the view 
of the French courts, it is submitted that the California Supreme 
Court in construing a section borrowed from the civil law is justi- 
fied in adopting the common-law interpretation of the language 
used, for it is not to be presumed that the legislators in adopting 
a civil-law institution in a common-law jurisdiction intended as 
well to adopt the interpretation of the civil-law courts, but rather 
that the transplanted institution should receive its development in 
the hght of its common-law surrotmdings. 

L. N. H. 



12 Merlin, Repertoire (1828), Vol. 16, Signature, §3, Art. 7; Laurent, 
Principes de Droit Civil (1876), Vol. 13, pp. 247-249; Aubry & Rau, Cours 
de Droit Civil Francais (4th ed., 1875), Vol. 7, p. 108; Labori, Repertoire 
Encyclop6dique du Droit Francais (1896), Vol. 12. p. 256, §73. 

"Succession of Annant (1891), 43 La. Ann. 310, 313, 9 So. 50, 26 Am. 
St. Rep. 183. 

1* Liege, 22 February 1812, Dalloz No. 2730. Cf. Laurent, Principes de 
Droit Civil (1876), Vol. 13, pp. 247-249. 

i» Cassation, 20 April 1813, Dalloz No. 2729. Cf . Laurent, supra, n. 14. 



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Book Reviews 



Cases in Quasi Contract. — Selected and edited by Edward 
S. Thurston. West Publishing Company, St. Paul, Minnesota. 
1916. pp. 622. $4.00. 

This selection of cases by Edward S. Thurston, Professor of 
Law in the University of Minnesota, is issued as one of the Ameri- 
can Casebook Series. The selection includes in addition to a care- 
ful selection of American cases, many early English decisions and 
presents clearly the historical development of the subject. 

H, H. P. 

Bankruptcy Forms Annotated. Second Edition. By Marshall 
S. Hagar and Thomas Alexander. Matthew Bender & Company, 
109 State street, Albany, New York. 1916. pp. liv, 622. $9.00. 

The scope of this work is broader than is indicated by its title, 
including as it does in addition to bankruptcy forms, annotations 
to and illustrative cases of the General Orders in Bankruptcy. 
The rules of the several United States District Courts relating 
to bankruptcy are included, the whole presenting a practical work 
of value to the busy practitioner. 

H. H. P. 

A Treatise on the American and English Workmen's 
Compensation Laws. By Arthur B. Honnold. Vernon Law Book 
Co., Kansas City, Mo. 191 7. 2 vols. pp. x, 1905. $15.00. 

One who undertakes to furnish the bar with a handbook upon a 
subject new and rapidly growing undergoes the danger of having 
his work superseded, and the investment of his time and trouble 
rendered comparatively valueless. Therefore, any attempt so to 
do is deserving of every encouragement, for he may render a great 
service in two ways, by collecting and arranging a mass of yet 
undigested authorities, and also by generalizing and commenting 
upon them so that reasonable and workable theories may ultimately 
be obtained upon an undeveloped subject, still confused with 
legislative crudities. Mr. Honnold has attempted only the first 
of these services, and has done it in a way that will be most useful. 
His first volume containes a clear analysis and presentation of the 
authorities. The second volume is a compilation of the statues of 
the various states and England with a synopsis of the German law, 
useful to those who wish to contrast or compare the laws of differ- 
ent jurisdictions. So far Mr. Honnold has come to the relief of 
the bar and student in a very satisfactory manner, but the value 
of his service is impaired considerably by the index, which, generaly 
speaking, is an alphabetical arrangement of nouns ratiier than 
principles. One having occasion to look up a question relating to 
an injury caused by a stroke of lightning or slipping on a banana 
peel will find himself referred to cases in which injuries from these 



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358 CALIFORNIA LAW REVIEW 

causes have occurred, but if the injury arises from some cause 
as to which no case seems yet to have arisen, as for instance a 
landslide, the searcher will have difficulty in finding cases in point 
through the index. It is only fair to state that with the principles 
as yet chaotic any other manner of indexing than that which Mr. 
Honnold has chosen would be exceedingly difficult, but the general 
matter of the first volume is so excellent that one wishes he had 
tried his hand at a more lawyer-like arrangement. 

Mr. Honnold cannot be blamed for not attempting to generalize 
and criticize more than he has done. He has presented himself 
as a compiler rather than as a critic, but in no subject is a critic 
with a logical and, if the terms may be used, a "Gray"-ian or 
"Wigmore"-ian mind more needed.* Mr. Honnold seems worthy 
to attempt this task. It is again a pity that he withheld his hand. 

A, r. W. 

Magna Carta and Other Addresses. By William D. Guthrie. 
Columbia University Press. New York City. 1916. pp. x, 282. 
$1.50 net. 

The merit of these addresses is considerable, as might have 
been expected from the high professional character and learning 
of their author. Those on "Constitutional Morality" and on "The 
Eleventh Amendment" are particularly interesting and abound in 
valuable suggestions. The advantage of Mr. Guthrie's point of 
view lies in his lawyer-like attitude, which repognizes the funda- 
mental necessity for forms and conventions. 

This point of view, however, sometimes leads the author to 
advocate positions merely because they are traditional. In the 
address on Magna Carta, for example, though apparently familiar 
with the results of modem investigation as set forth in such a 
book as "McKechnie's Magna Carta," Mr. Guthrie nevertheless 
justifies the utterly indefensible thesis that trial by jury is some- 
how guaranteed by that instrument. Such a statement as that 
"it is sufficient for us that the antecedents of the modem jury 
system in all its three forms of grand jury, criminal jury and civil 
jury existed at the time of Magna Carta and were preserved by 
it," is wholly inexcusable. The lawyer cannot strengthen his cause 
by resolutely shutting his eyes to facts which may be established 
by a reference to any respectable modem text book on English 
history. 

O. K, M, 

The Prosecution of Jesus : Its Date, History and Legality. 
By Richard Wellington Husband. Princeton University Press, 
Princeton, N. J. 1916. pp. 302. $1.50 net. 

* Mr. Bohlen's interesting and instructive articles from this point of 
view on a single phase of the subject should not be passed without 
notice. See 25 Harvard Law Review 401, 517. 



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BOOK REVIEWS 359 

This is a scholarly discussion from the point of view of the his- 
torian, and not of the religious enthusiast or modem lawyer. An 
examination is made of the complex evidences bearing on the sub- 
ject, and the author's conclusions, not very dogmatically stated, are 
that the preliminary proceedings before the Sanhedrin and the sub- 
sequent trial before Pilate were legal according to contemporaneous 
law. 

Many lay writers have doubtless unconsciously felt that their 
religious fervor and interest justified them in expressing views 
upon a subject with which they were not qualified to deal through 
lack of historical training and knowledge. Nor is the question one 
which can be adequately treated by a lawyer without such qualifi- 
cation. The ordinary lawyer is prone to judge according to the 
standards of the system with which he is familiar, and a knowl- 
edge of Jewish history and law, and above all, the application of 
Roman Law in Roman Provinces, essential to an authoritative 
utterance, is quite outside his information. 

The reviewer is an ordinary lawyer and is therefore capable of 
expressing only a lawyer's opinion on the evidence presented by the 
author. He cannot pass on the accuracy or thoroughness of Mr. 
Husband's historical researches, but he can declare that these 
researches have been made, particularly as to Roman Law in 
Roman Provinces, and that Mr. Husband has escaped the blinding 
effect of excessive fervor one way or the other, and is without the 
unconscious bias of a lawyer accustomed only to one system and 
without historical training. In addition the book is clear and read- 
able, and to those whose prejudices do not compel them to take 
sides and who are interested in the subject, is most welcome. 

A, T, W, 



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Books Received 



The Law of Eminent Domain. By Philip Nichols. 2nd Edi- 
tion. Matthew Bender & Co., Albany, N. Y. 1917. 2 Vols, 
pp. xxix, 1842. $15.00. 

A Treatise on Federal Criminal Law Procedure. By 
William H. Atwell. 2nd Edition. T. H. Flood & Co., Chicago, 
111. 1916. pp. XXV, 808. $6.50. 

A Man in Court. By Frederic De Witt Wells. G. P. Put- 
man's Sons, New York, N. Y. 191 7. pp. xvi, 283. $1.50 net 

Some Legal Phases of Corporate Financing, Reorganiza- 
tion AND Regulation. By Francis Lynde Stetson, James Byrne, 
D. Cravath, George W. Wickersham, Gilbert H. Montague, George 
S. Coleman and William D. Guthrie. The Macmillan Co., New 
York. 191 7. pp. 389. $2.75. 

Unfair Competition. A Study of Certain Practices. By 
W. H. S. Stevens. 3rd. Edition. The University of Chicago 
Press, Chicago, 111. 1917. pp. xiii, 265. $1.50 net. 

The Law of Trademarks, Tradenames and Unfair Com- 
petition. By James Love Hopkins. 3d Edition. The W. H. 
Anderson Co., Cincinnati, Ohio. 191 7. pp. xv, 1054. $10.00. 

The Law Applied to Motor Vehicles. By Charies J. 
Babbitt. 2nd Edition. By Arthur W. Blackmore. John Byrne 
& Co., Washington, D. C. 1917. pp. liv, 1262. $7.50. 

Standards of American Legislation. By Ernest Freund. 
The University of Chicago Press, Chicago, 111. 1917. pp. vii, 
327. $1.50 net. 

Cases on Legal Ethics. American Case Book Series. By 
George P. Costigan, Jr. West Publishing Co., St. Paul, Minn. 
1917. pp. X, 616. $4.00. 



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California Law Review 

VOLV JULY, 1917 Number 5 

The Elstablishment of Civil Government 
in Porto Rico* 



WHEN I was honored with an invitation to address the 
students of the Law Association of this great university, 
my first thoughts of a subject which might have more than 
ephemeral interest adverted to the present systems of juris- 
prudence, and particularly to those branches which have to do 
with the organization of the federal courts and practice before the 
federal courts. I felt that experience of many years would entitle 
me to speak upon that general subject and to suggest changes 
which, if adopted, would, I am sure, effect reforms vastly advant- 
ageous to our whole complex, judicial administrative scheme of 
government. But as we always have reformers in our midst and 
we can at almost any time gather their ideas of what is wrong 
and ought to be done for the future, I concluded that I would on 
this occasion refrain from piling my opinions upon the heap of 
suggestions already high, but instead would narrate a part of the 
accomplished history of how we of the United States implanted 
our institutions among a million people who, by the fortunes of 
war, were suddenly brought imder the tutelage of the American 
flag. To the law student it ought not to be uninteresting, for it 
helps to demonstrate the catholicity of our profession and the 
demands upon its members. 

The island was discovered by Columbus in 1493 on his second 
voyage to the Caribbean. Tradition has it that when Columbus 
returned to Spain and was asked by Ferdinand and Isabella to 



♦Address delivered before the Law Association, School of Juris- 
prudence, University of California. 



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362 CALIFORNIA LAW REVIEW 

describe the newly discovered island, he crumpled his handker- 
chief in front of them, telling their majesties that such was the 
relief of the country. The description is not inapt, in that there 
is a range of hills running through the centre of the island from 
east to west, with altitudes from one thousand to three thousand 
feet. From the tops, can be seen on one side the Atlantic Ocean, 
and on the other the Caribbean Sea. The island is approximatdy 
one hundred miles in length and thirty-five in width, and contains 
an area of about thirty-five hundred square miles. It can be 
generally described as the fourth in size of the Greater Antilles and 
lying about sixty miles eastward Irom Haiti and five hundred 
miles south and east of Cuba. 

Within a few months after the Spanish- American War of 1898, 
the American troops landed in Porto Rico on July 25th of that 
year. The resistance of the Spaniards to our forces was ineflFec- 
tual: indeed, many of the native Porto Ricans went down to 
the shores to welcome them with open arms. The Porto Ricans 
believed that freedom, which had not theretofore been known by 
them, awaited them under the American flag. A few days after 
the landing, when the protocol was signed by which peace between 
Spain and the United States ensued, the island had been invested 
by our troops, and thereafter, in December 1898, under the treaty 
of Paris, it became forever ours by cession of Spain. 

I will not dwell upon the events of the military occupancy of 
the island between July 1898 and May 1900. Under the American 
governors-general it was a benign military government. The laws 
were made by military orders issued by the general in conunand of 
the military forces, and enforced not by virtue of civil process, but 
as military mandates, obedience to which was required by force 
of the sword. A provisional court was established by military 
order. It was constituted with military officers and an American 
lawyer who had drifted to the island directly after we acquired 
it from Spain. But as the people wanted a civil government in 
which they could participate, Congress, in its wisdom, saw fit to 
establish a new civil governmental organization by act which 
became effective May 1, 1900. From that date military govern- 
ment ceased, and for the first time the people found themselves 
free to take up their own political aflFairs. This organic law has 
always been known as the Foraker Act, called so because Senator 
Foraker of Ohio was the author. 

This organic act provided for appointment by the President of 



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CIVIL GOVERNMENT IN PORTO RICO 363 

a governor and eleven councillors, six of whom should be the 
heads, respectively, of the several departments of the newly 
organized government, and five of whom should be natives of the 
Island of Porto Rico and who, although not charged with execu- 
tive responsibility in being heads of departments, were yet to be 
members of the executive council. The council was clothed with 
the authority to legislate in conjunction with a house of delegates. 
In fine, the council and house of delegates had a legislative power 
not unlike the systems which prevailed in the territories of the 
mainland of our country. The essential diflFerence was this: all 
councillors were appointed,, and six councillors acted also as 
executive heads. In studying the history of the form of govern- 
ment, I found that it was largely modeled upon the English 
colonial form that obtains in the Island of the Barbadoes. There 
we find an appointive executive council, or senate, if you will, 
with a majority of its members charged with executive duty as 
well as legislative, and a legislative assembly elective by popular 
vote which, in conjunction with the council, legislates generally 
with respect to the aflFairs of the island. In Porto Rico the lower 
house was designated the house of delegates. It consisted of 
thirty-five members elected from the election districts in the 
island, the first election districts having been established by an 
order of the executive council in its duty of providing for the 
election held in the island in 1900. 

Among the executive heads was the secretary of the island. 
His duty was to keep the minutes of the executive council and 
look particularly after the affairs of the various municipalities ol 
the island; to take general charge of executive records and cor- 
respondence. Reports to the governor go through his office: it is 
a sort of clearing house for executive action. 

The treasurer was charged with the duty of particularly safe- 
guarding the revenue systems, including the assessment and collec- 
tion of taxes, the custodianship of all public funds, the imposition 
of excises, and generally the execution of all fiscal affairs. 

The commissioner of the interior was charged with the build- 
ing and management of improvements within the island, all harbor 
improvements, road construction, and operation of government 
telegraph lines. He also had charge of charitable institutions. 

The commissioner of education had the direct responsibility for 
the educational affairs of the island. It became his duty to execute 
all laws having for their purpose the establishment of systems for 



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364 CALIFORNIA LAW REVIEW 

education, construction of school houses and establishment of 
normal schools. 

The attorney-general was the legal adviser of the governor 
and executive heads. It devolved upon him to aid in the estab- 
lishment of a judicial system, to exercise supervision over the 
clerks of the court, and to prosecute all litigation wherein the 
public was interested. He also had supervision of prisons. 

The auditor was the head of the system of accounts. It was 
solely through the auditor's office that warrants for the payment 
of money could pass. It was his duty to audit and approve every 
account against the island and to secure the written approval of 
the governor to every warrant which called for the pa)rment of 
money from the treasury. 

Upon May 1st, 1900, in the presence of a tremendous gather- 
ing of the people, including not only the most distinguished but 
throngs of bare-footed humble natives, the formalities of yielding 
military to civil power took place. From the front of the old 
Fortelaza or governor's palace, which had been built in 1533, 
looking over the palms out to the sapphire blue ocean, under a 
cloudless sky against which floated the flags of our country, came 
the message of a new day for this unfortunate people. It told 
them that forever the miseries of four centuries were ended and 
that the dawn of a happier day had come. As the venerable Chief 
Justice of the Supreme Court of the island administered the oath 
to the first civil governor and there pealed the strain of our 
national air, strong mien of the island who had throughout their 
lives struggled and struggled against the scourge of bad govern- 
ment wept in solemn joy that they had lived to see that day. 
Prosper a lux oritur! 

So the first actual step in civil government was taken. In June 
we organized the executive council. The five native councillors 
appeared in formal dress, and after paying their respects to the 
governor, proceeded to what was called the throne room pf the old 
palace in San Juan, and there formally organized by electing a 
president of the council, chief clerk, and minor officials. In as- 
much as the five native councillors spoke no English, our proceed- 
ings were all translated as we moved from point to point. 

When we were ready for business, among the first important 
situations which confronted us was the fiscal need of the govern- 
ment. We could not appropriate because legislative action con- 
templated concurrence of the house of delegates. Yet we had to 



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CIVIL GOVERNMENT IN PORTO RICO 365 

have funds to meet governmental expenses from May 1, 1900, 
when the civil government was organized, until after the members 
of the house of delegates could be elected and organized and could 
make appropriations wherewith to pay public expenses. The 
insular treasury had but little money in it, and the natives could 
not understand the use of warrants, although they might be dis- 
counted at value at bahking institutions. In the light of Spanish 
history, to them a government evidence of debt meant depreciated 
value and uncertainty of sale at any price. The suggestion of such 
a plan was, therefore, distasteful to the native councillors. But 
as no election of delegates could be had for months, we were 
sorely perplexed. Fortunately the first governor, Mr. Allen, of 
Massachusetts, was not a lawyer, and did not fed that restraint 
which goes with the lawyers' dread of usurpation or infringement 
of power. He was an intelligent, farseeing, practical business 
man, however, who could, and would, act, while most of us 
paused. He told me that he was not going to permit the credit 
of the island to be hawked about by natives holding warrants 
which they would be compelled to sell at ruinous discount to per- 
sons willing to give to holders but a small fraction of their real 
value. I suggested to him the difficulty of legalizing any action 
which the executive council might take; that there was but one 
arm of the legislative body in existence; and that under the 
organic act there was no power to appropriate without the consent 
of the assembly as a whole. The governor, with clear and 
courageous vision, said that there must be some way to avoid a 
humiliating evidence of the impotence of American power. So, 
calling to our aid the Spanish lawyers who had participated in 
past affairs, we searched the royal orders which had been issued 
from time to time by the Kingdom of Spain to control the Island 
of Porto Rico and Cuba, and among them found a decree to the 
effect that if the budget of one year was exhausted without royal 
order having been made for a new budget, the governor-general 
of the island could, by proclamation, make an order which would 
be effective to continue the expiring budget, subject to action of 
the king. With this to tie to, we concluded to have a budget 
adopted by resolution of the executive council, making it applicable 
for the fiscal year commencing July 1st, 1900, to be in force until 
otherwise provided for by legislative action. This scheme met 
the approbation of the council, the budget received approval by 
the governor, and was promulgated and made the authority for 



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366 CALIFORNIA LAW REVIEW 

paying out the moneys from the treasury of the island upon the 
warrants issued by the auditor and countersigned by the governor. 
The incident illustrates how a forceful man met a situation which 
called for immediate action and which involved the good faith of 
our government toward the islanders. 

We quickly found another perplexity which is worthy of 
mention. By the Foraker law, the council alone was charged 
with the duty of dividing the island into election districts and of 
providing for the first election of members of the house of dele- 
gates. Here we witnessed the first serious interruption of the 
harmony under which we had proceeded during the first two or 
three months of civil government. The Porto Ricans are all 
politicians, active, energetic, restless, bitter. They carry politics 
into all affairs of life, and opposing divisions do not put aside 
their antagonisms. Among the five natives whom President 
McKinley had appointed to the council, there were two who 
called themselves federals — really a pro-Spanish party, two who 
called themselves republicans and who were in earnest sympathy 
with the new sovereignty; and the fifth was a native planter who 
had been educated in Connecticut, had fought in the Civil War, 
and had an appreciation of the real littleness of the hatreds which 
prevailed among his own people. After the introduction of bills 
to district the island, the American members thought it would be 
well to refer th^ several bills to a committee made up exclusively 
of the five native councillors, directing them to report to the 
council a scheme of division of the island into election districts 
which would be wise and impartial. As the president of the 
executive council, I carried out our plan and named the five native 
members as a special committee upon elections. The committee 
soon found itself unable to agree upon a plan. Councillor Crosas» 
for the committee, reported that it was hopeless to expect unan- 
imity of conclusion. Accordingly, after repeated further efforts, 
but consistent failure, Mr. Crosas, in committee, threw his vote 
to the side of the recommendation of the republican councilmen, 
and majority and minority reports came to the council. When 
the question came for consideration. Councillor Crosas, speaking 
first in Spanish and then in English, said that his people were like 
Kilkenny cats — ^that they could never agree; that each faction 
of politicians was seeking a political advantage; and that he 
believed that the report in which he had concurred was perfectly 
fair to both and should be adopted. In the triangle we became 



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CIVIL GOVERNMENT IN PORTO RICO 367 

the direct arbiters, and no matter from which side we viewed the 
contentions, odium would ensue. We held a conference, and 
after going over the whole situation as it had been explained by 
the councilmen representing the several reports, we determined to 
throw our six votes in favor of the adoption of the report advised 
by Mr. Crosas. The news of our decision spread. At once 
throughout the island there arose intense political feeling. Abusive 
articles appeared in the papers representing the federal party; the 
coming of the Americans was deplored, they were held up to 
execration as tyrants, and the newspapers espousing the losing side 
advised that the two federal councillors who had been appointed 
by President McKinley should resign at once in order to preserve 
their prestige and show their disapproval of the action of the 
American councillors. We deplored the talk of resignation; it 
was so in conflict with popular government for men to retire 
from all participation because measures which they advocated 
were rejected that we earnestly hoped the counsel to resign would 
not prevail. We knew, however, that the pressure upon them was 
strong, and that the Latin political custom was deep-rooted. The 
council was to meet next day, when the adoption of the report 
would be the principal subject under consideration. Next day 
the question arose upon the adoption of the majority report upon 
a bill to establish election districts in the island for the purpose 
of the election of members of the house of delegates to be held 
in November. There was a motion to substitute the minority 
report. Remarks being called for, one of the natives speaking 
in Spanish burst into eloquent appeal for justice. I recall that 
he quoted Latin authors; and in his peroration exclaimed that no 
matter what action was about to be had, while he would bow to 
the superior power of men, yet he believed in the triumph of the 
justice of God. The council chamber was crowded, and as he 
sat down there was suppressed excitement. "Shall the report 
of the minority be adopted as a substitute for the report of the 
majority? The clerk will call the roll." Two votes for the 
adoption of the substitute; nine votes against the substitute. The 
report of the majority was adopted, and with low murmurings of 
dissatisfaction the crowd moved out and the session was adjourned 
until the next day. The following morning we received this 
cable from the Secretary of State, at Washington: 

"The President has received by cable the resignations of 
Senors De Diego and Communes as members of the executive 



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368 CALIFORNIA LAW REVIEW 

council of Porto Rico. What course do you advise him to 
take?" 

We concluded at once that it would be unwise to approach 
the resigning councillors and ask them to withdraw their cabled 
resignations; believing that the proper advice to the President 
was that he should accept them and promptly appoint their suc- 
cessors, we cabled him to that effect. The following morning we 
received this reply: 

"To the President of the Executive Council. 

I am directed by the President to inform 
you that he has this day accepted the resignations of Senors 
De Diego and Communes as members of the executive 
council." 

A few days thereafter their successors were appointed, took 
the oath of office, and the membership of the council was again 
complete. But the political atmosphere was ill seeming and thick. 
The incident was unfortunate. It injected into the election cami- 
paign, just about beginning, bitterness that would have been 
avoided could we, who had to be in close contact with the people, 
have been relieved at that very early period in forming govern- 
ment of taking sides as between the natives themselves. In time 
asperities softened a little, and the object lesson gained was in 
showing that ours was to be a government of measures and not 
of men. 

Election machinery was started. We expected a close contest 
at the polls between the two parties. But within a week of the 
election day a formal notice was served upon us by the Jefe or 
Chief, as he is called, of the federal party, that, feeling itself 
aggrieved at the conduct of the Americans in the executive 
council, the federal party would refrain from participation in the 
election. Beyond mere acknowledgment of the receipt of the 
letter, no comment was made by anyone connected with the gov- 
ernment. Election day came. There was no disturbance of any 
kind, but no participation from one end of the island to the other 
by the federal party, and as a result, the so-called republican 
party of the island elected its entire thirty-five candidates to the 
legislature. 

On January 1st, 1901, the legislature gathered. The members 
were full of hope and made much of the event of assembl3ring 
a body of natives to make laws for the people. Trial by jury was 
one of the most desired reforms, and if my recollection is correct. 



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CIVIL GOVERNMENT IN PORTO RICO 369 

the first sentence of the first law ever passed by the legislature 
of the island contained these words : "The right of trial by jury is 
hereby established in Porto Rico." Reform systems of revenue were 
crystallized into statutes, a judicial system was provided for, a 
liberal school law was enacted, appropriations were made for the 
extension of roads, laws were passed looking to the establishment 
of more efficient health boards, measures of prison reform were 
adopted, and useless public places lessened in number or abolished 
altogether. 

The educational department, in charge of Doctor Brumbaugh, 
now Governor of Pennsylvania, afforded that able man oppor- 
tunity to do great work. Under the Spanish system, about 
twenty-two to twenty-five thousand children were at school; 
teaching had been most inadequate, the schoolrooms wretched, the 
attendance irregular, and the results deplorable. Doctor Brum- 
baugh adopted such modem methods as insured better attendance, 
more thorough methods of study, and liberalized the courses of 
instruction. Rapidly the number of children increased, and at 
the end of the first year the attendance had g^own by thousands. 
It was wonderful to travel through the island and see the little 
native children happy in their schoolrooms and to hear them sing 
with a will the "Star Spangled Banner." 

The greatest problem connected with the organization of the 
judicial system was to have it clearly understood that under our 
ideas it miust be a wholly independent, co-ordinate branch of the 
government, absolutely removed from all suspicion of executive 
influence or legislative control. To the lasting honor of the people, 
the judges of the supreme court who were appointed by the 
President were of very pure character, high ideals, and great 
learning. The three natives (there were five judges) had been 
educated at the imiversities in Spain and France, and all were 
anxious that the courts fulfill their true mission. The Americans 
on the bench were thoroughly familiar with the Spanish language. 
It was very necessary that the Americans should know Spanish, 
inasmuch as no one of the Porto Rican judges spoke or under- 
stood a word of English. The supreme court preserved in the 
b^^inning the forms that had obtained under the Spanish 
dominion. The lawyers sat upon benches within the railing 
where the judges sat. They did riot face the court but sat on 
either side of the bench at right angles to it. The clerk faced the 
court, sitting about twenty-five feet in front of the judges. The 



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370 CALIFORNIA LAW REVIEW 

lawyers wore black gowns, and when the court opened its session, 
the marshal rang a bell in the corridor, but permitted none to 
enter the court room until the proceedings had actually begun. I 
remember how deeply interested the judges were in the history of 
the writ of habeas corpus. 

The new codes which the legislature adopted were, in a modi- 
fied way, like the codes of California and New Mexico. We 
found but little difficulty in their operation. The district judges 
often conferred with the attorney-general to gather his interpre- 
tations of procedure and forms. The jury system was an agree- 
able disappointment to us. We were uncertain lest sentiment, not 
evidence, gain too much hold. Very soon the responsibility of 
jury duty was undertaken with understanding of its obligations. 

While these reforms were going on, the interior department 
was carrying on improvement of roads to permit of access to 
undeveloped parts of the island. Bridges were being built ; harbors 
were being improved. Greater demand for labor resulted in a 
rise of wages for laborers, and better conditions gradually set in. 
The Insular Government owned and managed the telegraph lines. 

In sanitary measures we preserved the systems that had been 
inaugurated under the military govemirtent. Yellow fever dis- 
appeared from the island, municipalities were under obligations 
to keep their streets clean, and the food inspection laws which had 
been adopted by the Spaniards were kept in force. Here let me 
say that in many respects the Spaniards were much more strict 
in their surveillance of food than are some of our American com- 
munities. For example, all bread had to be of a certain quality 
before the. vendor was permitted to take it out into the streets, 
no meat was permitted to be sold except where the animal had 
been slaughtered before five o'clock on the morning that it was 
offered for sale. It was interesting to know that in such matters 
the Spaniard should have been so very strict, and yet that he 
would permit the streets of the cities to become filthy and dis- 
gusting. 

We have all read, doubtless, of how the dead were buried. 
The poverty of the people was so great that many could not 
afford to buy coffins, and when a man died his family would rent 
from the municipal authorities the right to use a coffin for the 
funeral. The body would be put into this box and carried upon 
the shoulders of volunteers to the municipal cemetery. There it 
would be put into an open grave in which oftentimes other bodies 



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CIVIL GOVERNMENT IN PORTO RICO 371 

had been buried. Not infrequently the dirt covering was so light 
that the skull and hair and bones of the corpse would protrude. 
After a certain period of time the municipal authorities would dig 
up the bones from a grave which was full because of several 
bodies and carry the bones over to a common heap in a comer 
of the cemetery. Thus the grave was ready for new interments. 
In many cemeteries the bones accumulated for years. This was 
done away with. Cemeteries were enlarged, the bone heaps were 
taken away, and modem methods have prevailed since. I do not 
speak of this as showing lack of respect for the dead. There was 
nothing of that kind existing. But the custom originated, doubt- 
less, because of poverty and limited graveyard space. 

A few words as to the legislature. It was but natural to 
expect a certain reaction against Spaniards. How could it be 
otherwise with a people entrusted with so much power after so 
many years of a mere obedience to authorities! I recall this 
incident. A distinguished citizen of the island and member of 
the legislature wished to introduce a bill to prevent the carrying 
and exhibition of cmcifixes at funerals. I told him that under 
American mle, where perfect tolerance of religious belief was 
inseparably part of our freedom, such a thing could not be and 
that his proposal was incompatible with our institutions. He 
seemed quite surprised, and after indulging in a tirade against 
what he conceived to be the injustices of the priests during the 
Spanish domination, reluctantly abandoned his idea. 

I recall another incident. After explanation of our purpose to 
relieve the people as much as possible from taxation of vital 
necessaries, such as taxes upon rice, codfish and beans, which 
are the principal foods, and to impose taxes upon luxuries, such 
as cosmetics, wines, musical instmments, works of art and tlie 
like, a native gentleman asked me our theory in these respects. I 
told him that the Spanish system — the consumo tax which levied 
upon every pound of beans or codfish that the humblest peon in 
the island bought — seemed very unjust to the poor, and that we 
preferred the American system. Afterwards he said that he never 
before had known why art never had flourished in the United 
States ; that he now appreciated that it was because those who had 
artistic tastes and were able to indulge them were taxed so 
heavily that the artistic temperament in the people was repressed 
and thus America was behind other nations of the world in 
aestheticism. 



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372 CALIFORNIA LAW REVIEW